MacFarlane v. Smith CV-96-38-SD 11/27/96 P
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James M. MacFarlane
v. Civil No. 96-38-SD
Peter William Smith; Jack P. Crisp, Jr.; Beryl Rich
O R D E R
This civil rights action arises out of the civil arrest of
plaintiff James M. MacFarlane following his failure to pay
alimony as ordered by a state court divorce decree. Presently
before the court are separate motions filed by defendants Judge
Peter Smith and Attorney Jack Crisp to dismiss the complaint
under Rule 12(b)(6), Fed. R. Civ. P., for failure to state a
claim upon which relief can be granted. Plaintiff objects to
both motions.
Facts
Plaintiff MacFarlane was involved in state court divorce
proceedings against his ex-wife, defendant Beryl Rich. Defendant
Smith presided as a state court justice. At some point during the proceedings, plaintiff perceived
partiality shown by the presiding judge, defendant Smith, in
favor of Rich. In response, plaintiff filed motions for the
recusal of Judge Smith, which were denied. In addition,
plaintiff began to speak out against Judge Smith, distributing
thousands of embossed pencils with the legend "Kangaroo Court -
'Judge' Peter Smith" printed on them.
The state court's final Decree of Divorce included an
alimony monetary award in favor of Rich against plaintiff
MacFarlane. After a period during which MacFarlane failed to
discharge his obligation to pay. Jack Crisp, Rich's attorney and
another defendant herein, petitioned the court to issue a Civil
Arrest Order, or capias, to secure payment of the debt. Judge
Smith issued the capias, and plaintiff MacFarlane was
subseguently arrested. The next day, bail was set in the amount
that represented MacFarlane's alimony obligations under the
Decree of Divorce. Approximately ten days later, MacFarlane made
bail.
MacFarlane brings this action against Attorney Crisp and
Judge Smith under 42 U.S.C. § 1983 for violation of his
constitutional rights. Plaintiff claims violations of (1) the
Due Process Clause of the Fourteenth Amendment; (2) the Fourth
Amendment's prohibition against unreasonable seizures; and (3)
2 the First Amendment.
Discussion
1. Rule 12(b)(6) Standard
To resolve defendants' Rule 12(b) (6) motion, the court must
"take all well-pleaded facts as true," Shaw v. Digital Equip.
Corp., 82 F.3d 1194, 1216 (1st Cir. 1996), and extend the
plaintiff "every reasonable inference in his favor." Pihl v.
Massachusetts Pep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993)
(citing Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st
Cir. 1992)). A Rule 12(b)(6) dismissal is appropriate "'only if
it clearly appears, according to the facts alleged, that the
plaintiff cannot recover on any viable theory.'" Garita Hotel
Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st
Cir. 1992) (guoting Correa-Martinez v. Arrillaqa-Belendez, 903
F .2d 49, 52 (1st Cir. 1990)).
2. Jack Crisp's Motion to Dismiss
Section 1983 provides a federal cause of action to redress
violations of the Constitution or other federal laws. Assuming,
arguendo, that plaintiff can make the predicate showing of a
constitutional violation on these facts, the guestion becomes,
against whom may he seek redress in federal court for civil
3 damages under section 1983? The section 1983 cause of action
only runs against persons acting under color of law who deprive
another of constitutional rights. Generally, only formal agents
of the state are deemed to act under color of law. "Private
actors" are not amenable to a section 1983 action, and those with
grievances against them must seek justice under common law.
Nonetheless, "private actors may align themselves so closely with
either state action or state actors that the undertow pulls them
inexorably into the grasp of 1983." Roche v. John Hancock Mutual
Life Insurance Co., 81 F.3d 249, 253-54 (1st Cir. 1996).
The conduct of a private actor is treated as state action
redressable under section 1983 only if the state is sufficiently
linked to that conduct.
The Supreme Court in Adickes v. S.H. Kress & Co., 398 U.S.
144 (1970), held that the state is sufficiently linked to private
conduct when the private actor and state agents are co
participants in a joint action.
Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not reguire that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.
Id. at 152.
Under the caselaw applying Adickes, it is not entirely clear
4 what degree of state official involvement in the conduct of a
private actor is necessary to warrant a conclusion of "joint
action." In one case, the Supreme Court found state officials
sufficiently involved simply because they were mobilized to aid a
private actor in securing his rights under state law. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 942 (1982) ("The Court of
Appeals erred in holding that . . . 'joint participation'
reguires something more than invoking the aid of state officials
to take advantage of [state law rights].").
In contrast, the Court in Dennis v. Sparks, 449 U.S. 24, 28
(1980), reguired more significant entanglement of state officials
and the private actor marked by concerted action that goes beyond
mere aid in securing state law rights. Under the higher
threshold of Dennis, state officials summoned to secure private
rights under state law must be pursuing the ends of a conspiracy
with the right holder before a sufficient link to the state is
found. Id. ("Private persons, jointly engaged with state
officials in the challenged action, are acting 'under color' of
law for purposes of § 1983 actions. Of course, merely resorting
to the courts and being on the winning side of a lawsuit does not
make a party a co-conspirator or a joint actor with the judge.
But here the allegations were that an official act of the
defendant judge was the product of a corrupt conspiracy.").
5 The case law does not indicate which of the two different
standards, Lugar or Dennis, controls which sets of facts. See
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 622 (1991)
(finding that private litigant's peremptory challenge to
potential juror constituted state action because state court
officials assisted and enforced exercise of this state-created
right; no discussion of conspiracy); see also Howerton v. Gabica,
708 F.2d 380, 383-84 (9th Cir. 1983) (applying Lugar standard to
find sufficient state involvement where police facilitated
landlord's eviction of tenant by accompanying landlord to
premises). But see Casa Marie, Inc. v. Superior Court of Puerto
Rico for the District of Arecibo, 988 F.2d 252, 259 (1st. Cir.
1993) ("It is obvious, nonetheless, that something more than mere
resort to a state court is reguired to transform the moving party
into a co-conspirator or a joint actor with the judge."). See
also Alexis v. McDonald's Restaurants of Mass., 67 F.3d 341, 352
(1st Cir. 1995) (despite fact that police officer aided defendant
in exercising property rights by removing plaintiff from
premises, defendant was not acting "under color" of law because
no "concerted action tantamount to substituting the judgment of a
private party for that of police or allowing the private party to
exercise state power").
For the reasons that follow, this court finds that the
6 conspiracy standard of Dennis, rather than the lower "aid and
assistance" standard of Lugar, marks the appropriate threshold to
determine whether Attorney Crisp was engaged in joint action with
state officials. Choice of the governing threshold of state
official involvement sets the scope of federal judicial authority
under section 1983. The lower the threshold, the more private
conduct will be swept under the rubric of "state action"
redressable within the adjudicatory competence of federal courts.
Thus, resolution of this issue should begin with the broader
principles governing the distribution of judicial authority
between state and federal courts.
Settling the dispute of one individual against another has
traditionally been considered at the core of state law's sphere
of authority. "The jurisdiction which Article 3 of the
Constitution conferred on the national judiciary reflected the
assumption that the state courts, not the federal courts, would
remain the primary guardians of that fundamental security of
person and property which the long evolution of the common law
had secured to one individual as against other individuals."
Monroe v. Pape, 365 U.S. 167, 237 (1961) (Frankfurter, J.,
dissenting). The Supreme Court has recognized that section 1983
was not intended by the enacting Congress to effectuate any broad
departures from traditional boundaries between state and federal
7 authority.
[S]ome questions of property, contract, and tort law are best resolved by state legal systems without resort to federal courts. . . . [This principle] respects the delicate balance between state and federal courts and comports with the design of § 1983, a statute that reinforces a legal tradition in which protection for persons and their rights is afforded by the common law and the laws of the States as well as the Constitution.
Albright v. Oliver, 510 U.S. 266, 284 (1994) . Congress intended
section 1983 as a limited cause of action that fell short of
federalizing all state tort law. Accordingly, the scope of the
state action requirement has been closely circumscribed in
judicial application to maintain a viable distinction between
legal wrongdoing that remains on the level of state tort law and
that which rises to the level of constitutional tort. Lugar,
supra, 457 U.S. at 935-37 ("Careful adherence to the state action
requirement preserves an area of individual freedom by limiting
the reach of federal judicial power. ... A major consequence
is to require courts to respect the limits of their own power as
dictated against . . . private interests.").
However, the state action requirement is more than just a
limiting principle, as it serves functions going beyond that of
forestalling the penetration of otherwise boundless federal
judicial authority. Specifically, the state action inquiry focuses on the conditions which, if met, indicate that the matter
is one of federal concern overcoming the traditional presumption
that state courts retain primary competence to resolve disputes
between co-citizens of the state.
Thus, on the other hand, the degree of state official
involvement deemed necessary to turn private conduct into state
action cannot be so low as to swamp the distinction between state
torts and constitutional torts. And it cannot be so high that
section 1983 lies silent when federal interests are in need of
vindication. This leaves open the guestion of what conditions
indicate the presence of a federal interest and thereby help mark
the boundary between state torts and constitutional torts.
In other contexts, the Supreme Court has considered the
inadeguacy of available state remedies to redress the deprivation
at issue as a condition relevant to whether a federal cause of
action was intended by Congress or otherwise appropriate. For
example, the Court in Monroe focused on the availability of
adeguate state remedies as relevant to whether Congress intended
a section 1983 cause of action for conduct of state officers that
went beyond authorization under state law. In holding that
section 1983 reached such unauthorized conduct, the Court
reasoned that Congress intended to "provide a federal remedy
where the state remedy, though adeguate in theory, was not available in practice." Id. at 174. There were, in theory,
state remedies available because the officer was acting outside
legally conferred authority. But, according to the Court, such
remedies appeared practically inadeguate "because, by reason of
prejudice, passion, neglect, intolerance or otherwise, state laws
might not be enforced." Id. at 180. The Court concluded that
Congress intended the section 1983 cause of action to extend to a
state agent's unauthorized conduct (which the Court accordingly
treated as state action) because available state remedies were
practically inadeguate.
Likewise, the Court in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 394 (1971), considered the inadeguacy of
state remedies to redress deprivation of interests protected
under the Fourth Amendment as relevant to setting the scope of
federal judicial power. The Court reasoned that the invasion of
privacy, at issue in the case, by a federal officer represented a
more onerous and coercive species of legal wrong than the typical
tortious invasion by a private citizen. State tort remedies,
aimed only at the latter, were adjudged inadeguate by the Court
and replaced with a federal cause of action.
By analogy, similar considerations should guide resolution
of the degree of state officer involvement necessary to transform
"private conduct" into "state action" redressable under section
10 1983. Without such guidance, that state action requirement is
reduced to a "we know it when we see it" type of standard. At
the outset, state officials are implicated in every instance of
an individual's invoking or exercising rights under state law.
Lugar, supra, 457 U.S. at 943 (Burger, J., dissenting). In the
shadows behind all right holders stands the state ready to
mobilize its law enforcement machinery and deploy state officials
to secure enjoyment of the benefits it confers by proclamation of
law. This fact forms an important background supposition against
which much daily interaction takes place. However, the fact of
state officer involvement cannot be enough to treat private
conduct as sufficiently gravid with state action. Otherwise, the
state action requirement would not serve its function of limiting
the reach of federal judicial power, and every individual whose
invocation of state law rights proved inimical to the federal
rights of another would be a potential defendant in
constitutional litigation under section 1983. The state action
requirement therefore is not whether state officers are involved,
because that will always be affirmative; rather, it is a question
of the degree of state officer involvement that implicates
federal interests. However, without any milestones or
benchmarks, such as those provided by consideration of available
state remedies, the inquiry becomes highly impressionistic. To
11 avoid this, the reasoning of Bivens and Monroe can be relied upon
in settling on the appropriate threshold of state official
involvement. Accordingly, when state official involvement in
private conduct reaches the degree necessary to render state
remedies inadeguate, any resulting deprivation carries sufficient
indicia of federal concern that the conditions for the exercise
of federal judicial authority are met. It is this degree of
state official involvement that turns private wrongful conduct
into a section 1983 violation. The Supreme Court has implied as
much, holding that a factor is whether "the injury caused is
aggravated in a unigue way by the incidents of government
authority." Edmonson, supra, 500 U.S. at 622.
When involvement of state officials in private conduct is
at its lowest point on the spectrum, any resulting legal wrong is
a core instance of a state tort, and available state remedies
have been specifically tailored through evolution of statutory
and common law to redress such wrongs. Where, as here, an
individual claims that enjoyment of federal rights is jeopardized
by another individual's invocation and exercise of state rights,
he suffers no prejudice by a state court resolution of the
lawfulness of defendant's conduct. This counsels a presumption
against finding that private conduct influenced minimally by the
state is state action on the theory that Congress did not intend
12 to supplant adequate and appropriate state remedies.
However, at a certain point, the level of state official
entanglement in private conduct renders state tort law inadequate
to redress resulting legal wrongs. State officials may become so
entangled with private conduct that the private nature and origin
of the conduct is obscured by the influence of state power. When
such point has been reached, entanglement of state officials
becomes the functional equivalent of delegation to a private
party of coercive sovereign authority traditionally reserved for
agents of the state. The Court in Bivens held that invasion of
privacy by a federal officer is a different species of legal
wrong than typical tortious invasions due to coercive authority
vested in a federal officer and unavailable to the typical
tortfeasor. Bivens, supra; Pape, supra, 365 U.S. at 193 (Harlan,
J., concurring) ("One can agree . . . that Congress had no
intention of taking over the whole field of ordinary state torts
. . . without being certain that the enacting Congress would not
have regarded actions by an official, made possible by his
position, as far more serious than an ordinary state tort, and
therefore a matter of federal concern.") The element of coercion
likewise distinguishes the conduct of a private individual
exercising delegated state power from the typical tort, and, for
that reason, state remedies provide insufficient medicine for any
13 resulting deprivation of federal rights. For such conduct, the
presumption that state courts retain primary authority to settle
disputes between private parties is overcome, and the state
action reguirement envelops such conduct, clearing a space for
federal law to reach out and effect justice. "The pretense of
authority alone might seem to Congress sufficient basis for
creating an exception to the ordinary rule that it is to the
state tribunals that individuals within a State must look for
redress against other individuals within that State." Pape,
supra, 365 U.S. at 238.
Obviously, the degree of state influence rendering private
conduct more coercive and onerous than typical tortious wrongs
will vary with context. "Only by sifting facts and weighing
circumstances can the nonobvious involvement of the State in
private conduct be attributed its true significance." Burton v.
Wilmington Parking Auth., 365 U.S. 715, 722 (1961) .
However, there are two contexts that warrant special
treatment. In some contexts, state tort law may be bereft of the
necessary categories to redress deprivation of particular
interests protected by the Constitution. Some constitutional
rights do not enjoy any counterparts in the interests
traditionally protected at state common law. "There may be no
damage remedy for the loss of voting rights or for the harm from
14 psychological coercion leading to a confession. ... It would
indeed be the purest coincidence if the state remedies for
violations of common-law rights by private citizens were fully
appropriate to redress those injuries which only a state official
can cause and against which the Constitution provides
protection." Pape supra, 365 U.S. at 196 n.5. In addition,
there may be no adeguate state remedy because state law sanctions
the grievance at issue. Pape, supra, 365 U.S. at 249
(Frankfurter, J., dissenting) ("As to the adeguacy of state-court
protection of person and property, there seems a very sound
distinction, as a class, between injuries sanctioned by state law
(as to which there can never be state-court redress, if at all,
unless (1) the state courts are sufficiently receptive to a
federal claim to declare their own law unconstitutional, or (2)
the litigant persists through a tortuous and protracted process
of appeals . . . to this Court) and injuries not sanctioned by
state law."). In these contexts, state remedies are prima facie
inefficacious, and a lower threshold should govern whether state
official involvement reaches the level at which private conduct
will be treated as state action.
Lugar's lower threshold of state involvement can be
explained by the presence of both of the above factors which
render state remedies prima facie inadeguate. Because available
15 state remedies provided inadequate redress, the Court found the
private conduct constituted state action on a lower threshold
showing of co-participation by state officials. The plaintiff in
Lugar presented a three-count complaint. Count One, brought
under section 1983, alleged that the state law procedures
followed by defendant creditor in attaching plaintiff's property
constituted an unconstitutional deprivation in violation of the
Due Process Clause. Count Two, also brought under section 1983,
alleged that the unconstitutional deprivation of property
resulted from defendants' "malicious, wanton, willful, opressive
[sic!, [and] unlawful acts." Count Three was an overlapping
claim for malicious prosecution brought under state tort law.
The Court found state action to support Count One; however, it
dismissed Count Two for lack of such. As both Counts One and Two
arose out of the same facts, the degree of state officer
involvement in the creditor's conduct remained constant for both
counts. The question then is: What was the operative difference
such that the Court found state official involvement in the
creditor's conduct sufficient to support a finding of state
action for Count One and not for Count Two?
First, Count One alleged conduct on the part of the creditor
that was authorized under state law, whereas Count Two alleged
unauthorized conduct. The Lugar court held that unauthorized
16 conduct could not be treated as state action. The Court in
Monroe held that whether or not a state official's conduct was
authorized under state law was irrelevant to the state action
inquiry because state remedies, while theoretically available for
unauthorized conduct, were practically inadequate. Under Lugar,
when a state official and a private citizen co-participate in
unauthorized conduct that violates another's riqhts, a federal
remedy stands only aqainst the state official, and not the
private citizen, presumably because state remedies, while
practically inadequate aqainst the former, are both theoretically
and practically available aqainst the private actor. On the
other hand, conduct authorized under state law, like that at
issue in Count One in Lugar, raises concerns about the adequacy
of state remedies regardless of which of the co-participants is
sued. Thus, the authorized conduct in Count One was less likely
to be adequately redressed at state law than was the unauthorized
conduct of Count Two.
Second, in Lugar there were no available state common-law
counterparts for Count One, while Count Two overlapped with
established state torts. Count Two alleged "malicious abuse" of
state procedure, and the state tort of malicious prosecution
would be available to redress such legal wrong. However, Count
One alleged invocation of state attachment procedures which, if
17 wrongful, would not fit any state tort categories. Since the
debtor in Lugar retained possession of the attached property,
application of the two most relevant torts of conversion and
trespass to chattels was precluded, as both torts are against
possession. Due to the gap in available and adeguate state
remedies for Count One, the Court was willing to find the state
action reguirement satisfied by a lower level of state officer
involvement for Count One than for Count Two.
Readjusting the focus to the facts at issue here, it is on
these grounds that the instant case is distinguishable from
Lugar, despite surface similarities. Lugar and this case are
factually similar. In Lugar, state officials were deployed to
assist a private creditor in attaching property of his debtor.
Likewise here, state officials were deployed to assist a
creditor, defendant Crisp, in arresting his debtor, plaintiff
MacFarlane. Unlike in Lugar, the plaintiff in this case has
available overlapping claims under the common law for false
imprisonment and malicious prosecution against the defendant.
Even though Crisp's conduct was authorized under state law, that
authority would be void if a state court entertaining tort
actions against Crisp adjudged the sanctioning law as
unconstitutional. In this case, state remedies are both
theoretically and practically available, and MacFarlane suffers
18 no prejudice by state court resolution of the lawfulness of
Crisp's conduct. Given overlapping state tort law remedies,
Lugar's lower "aid and assistance" threshold of officer
involvement is inappropriate here.
Applying the higher "conspiracy" standard of Dennis,
plaintiff MacFarlane must show that his seizure under the civil
arrest order resulted from conspiracy between defendant Crisp and
the state officers involved. Only then will Crisp's otherwise
private conduct be deemed state action, bringing him within
section 1983's grasp.
A party seeking to wield a section 1983 cause of action
against a private individual on grounds of an alleged conspiracy
with state officials bears a higher burden of proof than is
otherwise reguired to survive a motion brought under Rule
12(b)(6), Fed. R. Civ. P. On this point, the First Circuit has
noted.
In an effort to control frivolous conspiracy suits under § 1983, federal courts have come to insist that the complaint state with specificity the facts that, in the plaintiff's mind, show the existence and scope of the alleged conspiracy. It has long been the law . . . that complaints cannot survive a motion to dismiss if they contain conclusory allegations of conspiracy but do not support their claims with reference to material facts.
Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977). If the
complaint contains nothing more than conclusory allegations
19 rather than well-pled facts, dismissal under Rule 12(b)(6) is
appropriate. See Dahlberq, supra, 748 F.2d at 93 (dismissing
complaint under Rule 12(b)(6) because "on the facts in the record
[no claim could be made] . . . that [state officers] entered into
a conspiracy or had a meeting of the minds with [the
defendants]); Thompson v. Aland, 639 F. Supp. 724, 729 (N.D. Tex.
1986) (dismissing under Rule 12(b)(6) because complaint did not
contain "factual allegations of conspiratorial conduct" beyond
the "blanket accusation of conspiracy").
While the complaint states that defendant Crisp and the
state officials conspired against him, it fails entirely to plead
any facts tending to show the existence of a tainted agreement,
such as a "backroom" meeting between the co-conspirators. Since
sufficient state involvement in Crisp's conduct has not been
adeguately alleged and supported. Crisp will not be treated as a
state actor, and the section 1983 claim against him is dismissed
under Rule 12 (b) (6) .
3. Judge Peter Smith's Motion to Dismiss
Plaintiff MacFarlane also seeks damages under section 1983
against Judge Smith, who issued the civil arrest order regarding
plaintiff. Under well-settled law, a judge enjoys absolute
immunity from a suit for money damages. Mireles v. Waco, 502
20 U.S. 9, 9 (1991). One of the limited circumstances under which
immunity will be pierced is when the judge acts "in complete
absence of all jurisdiction." Id. at 12.
Plaintiff MacFarlane contends that Judge Smith issued the
civil arrest order in absence of jurisdiction because he was, at
that time, disgualified for partiality. Part I, article 35, of
the state constitution provides that "it is the right of every
citizen to be tried by judges as impartial as the lot of humanity
will admit." New Hampshire courts have adopted a per se rule of
judicial disgualification for particularly visible and obvious
appearances of partiality or impropriety. State v. Martina, 135
N.H. Ill, 120-21, 600 A.2d 132, 138 (1991) ("a per se rule of
disgualification due to the probability of unfairness applies
when the trier of fact has pecuniary interests in the outcome,
when the trier of fact has become personally embroiled in
criticism from a party before him, or when he has heard evidence
in secret at a prior proceeding, or when he is related to a
party"). Plaintiff argues that Judge Smith's alleged
impartiality during the divorce proceedings disgualified him
under this rule, and divested his jurisdiction over matters
related to the divorce dispute. Plaintiff thus concludes that
Judge Smith cannot shield himself from this section 1983 action
because he acted in absence of jurisdiction and, for that reason,
21 is precluded from relying upon absolute judicial immunity. The
issue, therefore, is whether disqualification for partiality
strips a judge of otherwise proper jurisdiction such that the
"acting in complete absence of all jurisdiction" exception to
absolute judicial immunity applies.
There is some support in New Hampshire caselaw for the view
that a judge disqualified for partiality lacks jurisdiction to
preside over the case. In Russell v. Perry, 14 N.H. 153, 155
(1843), the New Hampshire Supreme Court said, "where a justice is
interested . . . the statute prohibits him from acting
judicially. These cases, then, are excepted out of the ordinary
jurisdiction of a justice." Perry supports a conclusion that a
judge disqualified for partiality takes subsequent action with
respect to the case in absence of jurisdiction.
Actions taken in the absence of jurisdiction will not,
however, subject a judge to liability unless such actions were
taken in the clear absence of jurisdiction, which is a standard
that forgives transgressions in borderline cases. The Supreme
Court has directed that "the scope of the judge's jurisdiction
must be construed broadly where the issue is the immunity of the
judge." Stump v. Sparkman, 435 U.S. 349, 356 (1978). "It is a
general principle of the highest importance to the proper
administration of justice that a judicial officer, in exercising
22 the authority vested in him, shall be free to act upon his own
convictions, without apprehension of personal consequences to
himself." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872).
To demonstrate the narrowness of the exception to judicial
immunity, the Court gave the following example to illustrate the
distinction between clear absence of jurisdiction, which defeats
the judge's immunity, and "excess of jurisdiction," for which the
judge remains immune:
if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction . . .; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would be acting in excess of his jurisdiction.
Sparkman, supra, 435 U.S. at 356 n.7 (citing Bradley, supra, 13
Wall, at 352). The Court in Sparkman counseled treating a
judge's jurisdiction as sufficiently broad that he is only in
limited cases deemed to act in its "clear absence." Under this
understanding of the breadth of judicial immunity, this court
finds that a judge's acting despite a disqualification for
partiality does not constitute acting in "clear absence of
jurisdiction," despite the dicta of the New Hampshire court in
Russe11 that such "cases . . . are excepted out of the ordinary
jurisdiction of a justice." Russe11, supra, 14 N.H. at 155. If
disqualification for partiality left a judge acting in "clear
23 absence of jurisdiction," judges would be saddled with litigation
upon the mere allegation of partiality. Even unfounded
allegations may reguire a trial before the judge's probity is
conclusively established.
The Supreme Court in Mireles held that judicial immunity
protects judges from such conseguences, stating that "judicial
immunity is an immunity from suit, not just the ultimate
assessment of damages." Mireles, supra, 502 U.S. at 11. The
Court continued, "judicial immunity is not overcome by
allegations of bad faith or malice, the existence of which
ordinarily cannot be resolved without engaging in discovery and
eventual trial." Id. The existence of partiality, like bad
faith or malice, cannot be ordinarily resolved "without engaging
in discovery and eventual trial." Id. Thus, if shielding judges
from litigation provides sufficient reason for the Court in
Mireles to treat acts in bad faith as covered under judicial
immunity, then, likewise, the risk of litigation provides
sufficient reason to treat acts taken by a judge disgualified for
partiality as absolutely immune from suit. Accordingly, this
court holds that any actions taken by Judge Smith after his
alleged disgualification for partiality were not taken in "clear
absence of jurisdiction" and that he is absolutely immune from
the section 1983 claim against him.
24 Conclusion
For the foregoing reasons, the motions to dismiss filed by
defendants Smith (document 6) and Crisp (document 9) are herewith
granted. The only remaining defendant in this case is Beryl
Rich.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
November 27, 1996
cc: James MacFarlane, pro se Daniel J. Mullen, Esg. Tanya G. Richmond, Esg. Cynthia L. Fallon, Esg. M s . Beryl Rich Diane M. Gorrow, Esg.