William J. Bauers, Jr. v. Herbert T. Heisel, Jr

361 F.2d 581

• Court: Court of Appeals for the Third Circuit
• Decided: June 9, 1966
• Docket: 15277_1
• Status: Published

Opinions

STALEY, Circuit Judge.

The almost bizarre and complex factual background which prompted the present litigation has its genesis in certain events which occurred in the early 1950’s. On October 29, 1950, William J. Bauers, Jr., the appellant herein, with two other inmates escaped from the Annandale Reformatory in Hunterdon County, New Jersey, and embarked upon a crime spree that carried him through Hunterdon and Essex Counties, New Jersey. Appellant’s freedom, however, was short-lived; he was apprehended, charged and indicted for crimes committed in Essex County. He pleaded non vult to the charges of assault with intent to rob and auto larceny and was sentenced by the Essex County Court to four to six years on each indictment.

In the interim, the Hunterdon County Grand Jury had returned indictments against him for the escape from the reformatory and auto larceny. Although these indictments were returned on January 3, 1951, appellant was not tri«d for the offenses alleged therein until May of 1953. During this entire period, he was serving the sentence imposed upon him by the Essex County Court. When he eventually did appear in the Hunterdon County Court, he requested counsel, counsel was appointed, and a jury was selected. The Criminal Minutes indicate that all these events transpired prior to 10:15 A.M. on the day of trial. The factual elements surrounding the appointment of counsel are not greatly dissimilar from the case of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), but no issue concerning this is involved here.

After a brief recess, Bauers pleaded guilty and was sentenced immediately to a term of two to three years on each indictment, the sentences to run concurrently with any sentence he was then serving (and apparently concurrently with each other). The state prison records indicate that Bauers had completed serving the Hunterdon County sentences prior to his release on parole on the Essex County sentences.

In February of 1963, Bauers applied to the Hunterdon County Court to dismiss the 1951 indictments and to vacate the sentences imposed on him after he had pleaded guilty. He contended that the indictments were illegal because he was a juvenile when the offenses were committed. The lower court denied his application, but the Appellate Division of the Superior Court of New Jersey reversed,¹ holding that since Bauers was not eighteen years old when the offenses were committed, jurisdiction over him was lodged exclusively in the Juvenile and Domestic Relations Court, N.J.Stat. Ann. 2A:4-14. Without a reference of the case to the county prosecutor by the juvenile court, N.J.Stat.Ann. 2A:4-15, no criminal process could be invoked against a juvenile. The court ruled that since the indictments were illegal, the pleas and sentences imposed were also illegal and should be expunged from the record.

Subsequently, Bauers instituted the present suit,² alleging that the defendant, Herbert T. Heisel, Jr., the Hunterdon County Prosecutor at all times relevant hereto, is liable in damages to the appellant for the deprivation of his liberty and for the denial of his right to a speedy trial. The district court ordered the complaint filed and at the same time dismissed it as “lacking in merit and pertain [ing] to the matters over which the court has no jurisdiction.” ³

On this appeal, the sole issue raised is whether the defendant, acting as the Hunterdon County Prosecutor, is immune from suit under the Civil Rights Act, 42 U.S.C. § 1983, R.S. § 1979.⁴ Because a full consideration of the arguments presented requires a re-examination of the position taken by this court in Picking v. Pennsylvania R. R., 151 F.2d 240 (C.A.3, 1945), the case was submitted to the court en banc.

There is no question that Picking would be dispositive of the immunity issue presently before us. Consequently, the only portion of that opinion which we reconsider deals with the liability of a judicial officer under the Civil Rights Act of 1871. In Picking, it was decided that no immunity would be afforded to a justice of the peace, a member of the minor judiciary in Pennsylvania; however, the language of the opinion is far more sweeping:

“* * * [W]e are not unmindful of the absolute privilege conferred by the common law upon judicial officers in the performance of their duties. * * * But the privilege as we have stated was a rule of the common law. Congress possessed the power to wipe it out. We think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated by that act and in fact did so. * * * The statute must be deemed to include members of the state judiciary acting in official capacity.” 151 F.2d at 250. (Emphasis added.)

While we do not choose to quarrel with the propriety of this disposition at the time it was made, we do believe that the Act even then would have been at least equally susceptible to a contrary construction.⁵ Nevertheless, we are certain that the reasoning employed and construction given R.S. § 1979 by the Supreme Court in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), is contrary to the position we adopted in Picking and requires us to overrule it.

In Tenney, suit was brought against a committee and its members of a state legislature under R.S. §§ 1979, 1980(3), 42 U.S.C. §§ 1983, 1985(3), formerly 8 U.S.C. §§ 43, 47(3). The Court stated that the issue before it was:

“Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here ?” 341 U.S. at 376, 71 S.Ct. at 788.

After making the concededly “big assumption” “that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere,” the Court answered its prophetic question:

“ * * * We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.” Ibid.⁶

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“ * * * [H]ere the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and * * * the statute of 1871 does not create civil liability for such conduct.” Id. at 379, 71 S.Ct. at 789.

We are not alone in our belief that the construction given R.S. § 1979 in Tenney sheds new light on the situation which confronted us in Picking. Although Picking had been the cause of some immediate concern, see Note, 46 Colum.L.Rev. 614 (1946), it was not until after Tenney that its pronouncement on immunity became the object of wholesale disavowal. In fact, five circuits explicitly stated that Tenney had in effect overruled Picking. Stift v. Lynch, 267 F.2d 237 (C.A.7, 1959); Cuiksa v. City of Mansfield, 250 F.2d 700 (C.A.6, 1957), cert. denied, 356 U.S. 937, 78 S.Ct. 779, 2 L.Ed.2d 813 (1958); Kenney v. Fox, 232 F.2d 288 (C.A.6), cert. denied sub nom. Kenney v. Killian, 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66 (1956); Tate V. Arnold, 223 F.2d 782 (C.A.8, 1955); Morgan v. Sylvester, 125 F.Supp. 380 (S.D.N.Y., 1954), aff’d, 220 F.2d 758 (C.A.2), cert. denied, 350 U.S. 867, 76 S.Ct. 112, 100 L.Ed. 768 (1955); Francis v. Crafts, 203 F.2d 809 (C.A.1), cert. denied, 346 U.S. 835, 74 S.Ct. 43, 98 L.Ed. 357 (1953). This view has also been adopted by several district courts in this circuit. Woodruff v. City & County of Philadelphia, 38 F.R.D. 468 (E.D.Pa., 1965); Hardy v. Kirchner, 232 F.Supp. 751 (E.D.Pa., 1964); Ellis v. Wissler, 229 F.Supp. 196 (E.D.Pa., 1964); Perkins v. Rich, 204 F.Supp. 98 (D.Del., 1962), aff’d per curiam, 316 F.2d 236 (C.A.3, 1963); Ginsburg v. Stern, 125 F.Supp. 596 (W.D.Pa., 1954), aff’d on other grounds, 225 F.2d 245 (C.A.3, 1955).

Though we choose to make an independent analysis of the issue before us, our rationale differs little from what was said in Tate v. Arnold, supra:

“ * * * Since the doctrine of judicial immunity is at least as well grounded in history and reason as is the rule of legislative immunity, the courts have interpreted the language * * * from Tenney * * * as authority for holding that the Civil Rights Act did not abrogate judicial immunity.” 223 F.2d at 785.

and in Francis v. Crafts, supra:

“* * * [T]he Picking case was decided in 1945 without benefit of the illumination and compelling analogy to be found in the opinion of the Supreme Court in Tenney v. Brand-hove, supra, which came down several years later. In view of the discussion in the latter case, we have no doubt that the Third Circuit would no longer feel obliged, as it did in the Picking case, to read the Civil Rights Act in such literal and unqualified manner as to impose liability for damages upon a state judicial officer for acts done in the exercise of his judicial function. Certainly it would be absurd to hold, in the application of the Civil Rights Act, that judicial officers of a state stand in any less favorable position than do state legislators, in respect to immunity from civil liability for acts done in their official capacity.” 203 F.2d at 812.

Rather than rely on the plethora of cases which have held judicial officers to be immune from suit under the Civil Rights Act,⁷ we believe that two maxims, one of statutory construction and the other of judicial restraint, when applied and coupled with Tenney, clearly indicate that judicial immunity was not abrogated by the Act.

First, it is well settled that a statute should not be considered in derogation of the common law unless it expressly so states or the result is imperatively required from the nature of the enactment. Mobile Gas Service Corp. v. FPC, 215 F.2d 883 (C.A.3, 1954), aff’d, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956); American District Telegraph Co. v. Kittleson, 179 F.2d 946 (C.A.8, 1950); Scharfeld v. Richardson, 76 U.S.App.D.C. 378, 133 F.2d 340, 145 A.L.R. 980 (1942). There can be little doubt that the concept of judicial immunity is deeply rooted in Anglo-American law. In Yates v. Lansing, 5 Johns, R., (N.Y.) 282, 291 (Sup.Ct. of Judicature, 1810), Chief Justice Kent noted that:

“ * * * It [judicial immunity] is to be found in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions in the English courts, amidst every change of policy, and through every revolution of their government.”

His concluding remarks — that the statute there being construed could not be read as impliedly abrogating judicial immunity — are peculiarly applicable here: “Ought such a sacred principle of the common law * * * be subverted without an express declaration to that effect?” Id. at 296. For a further review of the historical precedents on judicial immunity see Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347-354, 20 L.Ed. 646 (1871).

The statute before us also has no express declaration to that effect; nor does the legislative history adequately support the conclusion that Congress intended to dissolve judicial immunity.⁸ These factors, when considered in conjunction with the Supreme Court’s determination that legislative immunity was not inimical to the purpose of the Act, lead to the inescapable conclusion that the Act was not intended to be in derogation of the common law.

The second basis upon which we ground our conclusion that the traditional concept of judicial immunity remained undisturbed by the enactment of the Civil Rights Act finds its support in the maxims of judicial restraint as classically announced by Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion). Characterizing the approach a court should take when confronted with a case such as the one we are presently considering, he stated that:

“ * * # [i]f a case ean be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191 [29 S. Ct. 451, 53 L.Ed. 753]; Light v. United States, 220 U.S. 523, 538 [31 S.Ct. 485, 55 L.Ed. 570].” 297 U.S. at 347, 56 S.Ct. at 483.

This technique was employed by the Supreme Court in Tenney, and the constitutional issue of whether Congress had the power to abrogate legislative immunity was avoided by the Court’s conclusion that Congress did not intend to abolish the immunity.

In Tenney, the Court did not spell out the particular constitutional barrier which might be raised to void such Congressional action. Though we would not be compelled to go further, we choose to spell out at least one of perhaps several constitutional questions which would necessarily arise if the Act were construed so as to abrogate judicial immunity.

Article 4, § 4 of the United States Constitution provides: “The United States shall guarantee to every State in this Union a Republican Form of Government * * The framers of the Constitution clearly evinced their belief that a separate and independent judiciary is an indispensable element of a republican form of government. See The Federalist, pp. 236, 303-305, 488 et seq., 494 et seq. We believe that abrogation of judicial immunity by Congress would destroy the independence of the judiciary in the various States, and consequently deprive them of a republican form of government. The language of the Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646, lends support to our conclusion.

“* * * [I] t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful.” (Emphasis added.)

Our belief that the Act would violate the Guarantee Clause if construed to abrogate judicial immunity does not necessarily mean that either this court or the Supreme Court would have the power to remedy the wrong. The Supreme Court has held in a long line of cases, beginning with Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849), that Congress is charged with the enforcement of Art. 4, § 4. Alleged violations of this clause have been held to present “political questions” which are non-justiciable. See Baker v. Carr, 369 U.S. 186, 218-226, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962). Even if this case fell within that class labelled “non-justiciable,” we believe that would be all the more reason why we should not impute to Congress the intention to blatantly violate that trust.

Despite the wealth of cases holding Art. 4, § 4 violations to be non-justiciable, we think that none would govern the instant case. The numerical weight of those cases have involved state action, but as the Court pointed out in Baker v. Carr, supra, challenges to Congressional action based upon the clause have likewise been held non-justiciable. Id. at 224-225, 82 S.Ct. 713-714. The cases cited by the Court, however, involve extraordinary circumstances which would not be present if the Civil Rights Act were construed to aboíish judicial immunity. The absence of any overbearing political factor and the presence of substantial precedent to serve as criteria might well require a whole new analysis of the Guarantee Clause and non-justiciability. Fortunately, our task is only to state the problem, not to resolve it. Compare the majority opinion in Baker v. Carr with Pacific States Tel. & Tel. Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912); compare the concurring opinion of Douglas, J., 369 U.S. at 241, 82 S.Ct. at 723, with the dissenting opinion of Frankfurter, J., id. at 266, 82 S.Ct. at 737.

The construction we place on the Civil Rights Act not only avoids this constitutional issue, but is also in accord with the Court’s mandate that in Civil Rights Act cases the “lodestar of adjudication has been that the statute ‘should be construed so as to respect the proper balance between the States and the federal government * * *.’ ” Stefanelli v. Minard, 342 U.S. 117, 121, 72 S.Ct. 118, 121, 96 L.Ed. 138 (1951). See also Note, 68 Harv.L.Rev. 1229, 1231 (1955); Note, 36 Ind.L.J. 317, 334-335 (1961).

In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial as to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 492 (1961); Comment, 18 Ark.L.Rev. 81, 84-92 (1964). Analogy could support either conclusion, but we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the guilty and the protection of the innocent, Griffin v. United States, 295 F. 437, 439-440 (C.A.8, 1924); his office is vested with a vast quantum of discretion which is necessary for the vindication of the public interest. In this respect, it is imperative that he enjoy the same freedom and independence of action as that which is accorded members of the bench.⁹ This reasoning is nearly as well established in Anglo-American law as judicial immunity itself. Yaselli v. Goff, 12 F.2d 396 (C.A. 2, 1926), aff’d, per curiam “on the authority of Bradley v. Fisher * * * [and] Alzua v. Johnson, 231 U.S. 106, 111 [34 S.Ct. 27, 58 L.Ed. 142],” 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), and numerous cases and authorities cited therein. Prosecuting attorneys who have been sued under the Civil Rights Act, R.S. § 1979, have likewise been held immune. Laughlin v. Rosenman, 82 U.S.App.D.C. 164, 163 F.2d 838 (1947); Kenney v. Fox, supra, and other cases cited in note 7, supra.

The case of Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961), does not require a contrary result. In that Civil Rights Act case, the Supreme Court in a per curiam opinion affirmed in part and vacated and remanded to the court of appeals the causes against certain individual defendants (one of whom was corporation counsel for the City of Aurora, see Egan v. City of Aurora, 275 F.2d 377, 378 (C.A.7, 1960)) because the opinion of the Court of Appeals was “not explicit as respects the grounds for dismissing the complaint * * *.” 365 U.S. at 515, 81 S.Ct. at 685. This disposition, especially since the Court failed to expressly mention corporation counsel as an individual defendant, can hardly be cited for the proposition that a prosecuting attorney is not immune.¹⁰

The immunity of a prosecutor, however, is not without limitation; it is not absolute. The immunity of judges, from which the immunity of prosecutors is derivative, does not extend to acts which are clearly outside their jurisdiction. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, the Supreme Court established the guidelines for determining the scope of judicial immunity:

“ * * * [J]udges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. * * * Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences 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. But if on the other hand a judge of a criminal court, .invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction *

The elear-absence-versus-mere-excess-ofjurisdiction distinction has, in substance, been adopted and applied in Civil Rights Act cases brought against judges and other judicial officers. Robichaud v. Ronan, 351 F.2d 533 (C.A.9, 1965); Corsican Productions v. Pitchess, 338 F.2d 441 (C.A.9, 1964); Spires v. Bottorff, 317 F.2d 273 (C.A.7, 1963); Lewis v. Brautigam, 227 F.2d 124, 55 A.L.R.2d 505 (C.A.5, 1955). Because immunity is conferred on an individual solely by virtue of the office he holds, reason requires us to adopt a rule which does not provide immunity for those acts which are done clearly outside the authority or jurisdiction of the office.

Accepting, as we must, the truth of the allegations as pleaded in appellant’s complaint, we now proceed to examine those facts within the legal framework we have set forth above. The main thrust of the complaint is that the defendant knew or should have known that appellant had not reached the age of eighteen when the alleged offenses were committed, and that in procuring the indictments against him and the resulting pleas, sentences and incarceration, appellant was denied his liberty without due process. Assuming arguendo that this denial of liberty and the denial of a speedy trial abridged appellant’s constitutional rights,¹¹ so as to bring him within 42 U.S.C. § 1983 in that regard, we cannot perceive that the defendant acted clearly outside his jurisdiction in either matter.

We have already indicated that the primary responsibility of a prosecutor is to vindicate the wrongs which have been committed against society. This is precisely what appellee was doing when the denial of appellant’s liberty occurred. The mere fact that the New Jersey Legislature had excised from his responsibility the prosecution of individuals who were under the age of eighteen when they committed acts which would otherwise be punishable offenses does not indicate that he was acting clearly outside his jurisdiction. On the contrary, it would be difficult to envision a case which was as close-to his jurisdiction, but, yet, in excess of it.

As to the denial of a speedy trial, even if we assume that the defendant was responsible for the delay, we believe that motions for continuances or other causes of delay are well within the jurisdiction of the prosecutor.

Having decided these substantive questions, one further matter remains for our consideration. As this case comes before us, its posture is not greatly dissimilar from that of Tenney v. Brandhove, as it came before the Ninth Circuit, 183 F.2d 121 (1950), and the Supreme Court, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019. The district court in Tenney had dismissed the complaint for failure to state a cause of action. The Supreme Court reversed the Ninth Circuit and affirmed the district court’s dismissal for failure to state a cause of action. We likewise affirm the judgment of the district court on the grounds that the complaint fails to state a cause of action.

The judgment of the district court will be affirmed.

1 . The facts recited herein are taken largely from the unreported opinion of the Superior Court, State v. Bauers, A-510-63 (May 8, 1964), which was attached to and made part of the complaint.

2 . The complaint was not officially served on the defendant; instead, he received a copy of it by mail after the complaint had been dismissed. Although appellee Heisel did not appear in the district court, he has entered an appearance here and submitted a brief. Thus, the proceeding is adversary in nature. Compare Sires v. Cole, 320 F.2d 877, 878-879 & n. 2 (C.A.9, 1963).

3 . We cannot condone the procedure followed by the district court; the requirements of Rule 4(a) are explicit. Had appellee not appeared and filed a brief here, appellant may have been foreclosed from obtaining review of the district court’s determination. Compare Urbano v. Calissi, 353 F.2d 196 (C.A.3, 1965).

4 . Ҥ 1983. Civil Action for deprivation of rights.

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

5 . The rules of construction which we hereinafter apply could have been applied in Picking. We need not decide whether those rules would have required a result contrary to that which was there reached.

6 . The Cour.t was free to make this determination because it stated that “the limits of §§ 1 and 2 of the 1871 statute — now §§ 43 and 47 (3) of Title 8 — were not spelled out in debate.” Id. 341 U.S. at 376, 71 S.Ct. at 788. (Emphasis added.)

7 . Pierson v. Ray, 352 F.2d 213 (C.A.5, 1965) (police justice); Byrne v. Kysar, 347 F.2d 734 (C.A.7, 1965) (physician-members of court appointed medical commission and assistant state’s attorney); Haldane v. Chagnon, 345 F.2d 601 (C.A.9, 1965) (judges and bailiff); Arnold v. Bostick, 339 F.2d 879 (C.A.9, 1964), cert. denied, 382 U.S. 858, 86 S.Ct. 113, 15 L.Ed.2d 96 (1965) (state judge); Rhodes v. Meyer, 334 F.2d 709 (C.A.8), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed. 186 (1964) (state supreme court justices, state district judges, prosecuting attorneys, clerks of court, prison officials, members of state integrated bar, sheriffs and law enforcement officers); Harvey v. Sadler, 331 F.2d 387 (C.A.9, 1964) (judges); Agnew v. Moody, 330 F.2d 868 (C.A.9), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964) (judges and prosecuting attorneys); Scolnick v. Lefkowitz, 329 F.2d 716 (C.A.2), cert. denied, 379 U.S. 825, 85 S.Ct. 49, 13 L.Ed.2d 35 (1964) (state attorney general and assistant attorney general); Harmon v. Superior Court, 329 F.2d 154 (C.A.9, 1964) (state judges, district attorney, sheriff, county clerk, probation officer, court trustee, county auditor and c.ounty treasurer); Hurlburt v. Graham, 323 F.2d 723 (C.A.6, 1963) (justice of the peace and prosecuting attorney); Puett v. City of Detroit, 323 F.2d 591 (C.A.6, 1963) (municipal judge, assistant prosecuting attorney and corporation counsel); Sires v. Cole, 320 F.2d 877 (C.A.9, 1963) (state judge, prosecuting attorney and deputy prosecuting attorney); Phillips v. Nash, 311 F.2d 513 (C.A.7, 1962), cert. denied, 374 U.S. 809, 83 S.Ct. 1700, 10 L.Ed.2d 1033 (1963) (state’s attorney); Gately v. Sutton, 310 F.2d 107 (C.A.10, 1962) (state supreme court judges); Cooper v. Wilson, 309 F.2d 153 (C.A.6, 1962) (private attorney); Wise v. City of Chicago, 308 F.2d 364 (C.A.7, 1962), cert. denied, 372 U.S. 944, 83 S.Ct. 934, 9 L.Ed.2d 969 (1963) (city prosecuting attorneys); Saier v. State Bar of Michigan, 293 F.2d 756 (C.A.6), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343 (1961) (state supreme court justices); Kostal v. Stoner, 292 F.2d 492 (C.A.10, 1961), cert. denied, 369 U.S. 868, 82 S.Ct. 1032, 8 L.Ed.2d 87 (1962) (state judge and prosecuting attorney); Smith v. Dougherty, 286 F.2d 777 (C.A.7), cert. denied, 368 U.S. 903, 82 S.Ct. 180, 7 L.Ed.2d 97 (1961) (judge, state’s attorney and assistant state’s attorneys); Johnson v. MacCoy, 278 F.2d 37 (C.A.9, 1960) (judge); Bartlett v. Weimer, 268 F.2d 860 (C.A.7, 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960) (court appointed doctor); Larsen v. Gibson, 267 F.2d 386 (C.A.9), cert. denied, 361 U.S. 848, 80 S.Ct. 106, 4 L.Ed.2d 87 (1959) (state supreme court justices); Stift v. Lynch, 267 F.2d 237 (C.A.7, 1959) (state’s attorney, assistant state’s attorney and justice of the peace); Carpenter v. Dethmers, 253 F.2d 131 (C.A.6, 1958) (chief justice and clerk of state supreme court); Gay v. Heller, 252 F.2d 313 (C.A.5, 1958) (state judge and eourt appointed curator); Cuiksa v. City of Mansfield, 250 F.2d 700 (C.A.6, 1957), cert. denied, 356 U.S. 937, 78 S.Ct. 779, 2 L.Ed.2d 813 (1958) (municipal judge); Holmes v. Henderson, 249 F.2d 529 (C.A.9, 1957) (state court judge); Ryan v. Scoggin, 245 F.2d 54 (C.A.10, 1957) (state judge); Skinner v. Nehrt, 242 F.2d 573 (C.A.7, 1957) (state judge); Peckham v. Scanlon, 241 F.2d 761 (C.A.7, 1957) (superior court judge, assistant state’s attorneys and court reporter); Kenney v. Fox, 232 F.2d 288 (C.A.6), cert. denied sub nom. Kenney v. Killian, 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66 (1956) (state judge and prosecuting attorney); Tate v. Arnold, 223 F.2d 782 (C.A.8, 1955) (justice of the peace); Eaton v. Bibb, 217 F.2d 446 (C.A.7, 1954), cert. denied, 350 U.S. 915, 76 S.Ct. 199, 100 L.Ed. 802 (1955) (state’s attorney); Jennings v. Nester, 217 F.2d 153 (C.A.7, 1954), cert. denied, 349 U.S. 958, 75 S.Ct. 888, 99 L.Ed. 1281 (1955) (state’s attorney); Dunn v. Gazzola, 216 F.2d 709 (C.A.l, 1954) (police officer, superintendent of reformatory and state commissioner of correction acting pursuant to court order); Francis v. Lyman, 216 F.2d 583 (C.A.1, 1954) (commissioners of correction and prison superintendents acting pursuant to judicial decree); Cawley v. Warren, 216 F.2d 74 (C.A.7, 1954) (state’s attorney, his first assistant and grand jury foreman); Francis v. Crafts, 203 F.2d 809 (C.A.1), cert. denied, 346 U.S. 835, 74 S.Ct. 43, 98 L.Ed. 357 (1953) (state judge); Woodruff v. City and County of Philadelphia, 38 F.R.D. 468 (E.D.Pa., 1965) (judge and magistrate); Hardy v. Kirchner, 232 F.Supp. 751 (E.D.Pa., 1964) (judge, district attorney and alderman); Ellis v. Wissler, 229 F.Supp. 196 (E.D.Pa., 1964) (judge and district attorney); Ray v. Huddleston, 212 F.Supp. 343 (W.D.Ky., 1963), aff’d, 327 F.2d 61 (C.A.6, 1964) (state judge); Perkins v. Rich, 204 F.Supp. 98 (D.Del., 1962), aff’d per curiam, 316 F.2d 236 (C.A.3, 1963) (judge); Rhodes v. Houston, 202 F.Supp. 624 (D. Neb.), aff’d, 309 F.2d 959 (C.A.8, 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963) (district judge, prosecuting attorney, clerk of court, and in certain instances law enforcement officers and wardens); Ginsburg v. Stern, 125 F.Supp. 596 (W.D.Pa., 1954), aff’d on other grounds, 225 F.2d 245 (C.A.3, 1955) (chief justice and prothonotary of state supreme court); Morgan v. Sylvester, 125 F.Supp. 380 (S.D.N.Y., 1954), aff’d, 220 F.2d 758 (C.A.2), cert. denied, 350 U.S. 867, 76 S.Ct. 112, 100 L.Ed. 768 (1955) (trial and appellate judges); Souther v. Reid, 101 F.Supp. 806 (E.D. Va., 1951) (state judge).

8 . Our search of the legislative history of R.S. § 1979 bears out the Supreme Court’s statement in Tenney, quoted at note 6 supra, that “the limits of §§ 1 and 2 of the 1871 statute * * * were not spelled out in debate.” There are, however, two statements by opponents to H.R. 320, the House version of R.S. § 1979, which deserve mention.

Congressman Arthur of Kentucky assailed § 1 of the Bill, stating:

“Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts * * *. Under the provisions of this section every judge in the State court and every officer thereof, great or small, will enter upon and pursue the call of official duty with the sword of Damocles suspended over him * * Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366.

Congressman Lewis, also of Kentucky and another opponent of the Bill, charged that:

“By the first section, in certain cases, the judge of a State court, though acting under oath of office, is made liable to a suit in a Federal court and subject to damages for his decision against a suitor, however honest and conscientious that decision may be * * Id. at 385.

Although these statements appear strong on the surface, under careful scrutiny they stand for little more than opposition remarks. The Supreme Court has recently reiterated the weight which should be accorded such remarks:

“ * * * [W]e have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. ‘The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt.’ Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395 [71 S.Ct. 745, 750, 95 L.Ed. 1035]; see also Mastro Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 288, [76 S.Ct. 349, 350, 100 L.Ed. 309]; United States v. Calamaro, 354 U.S. 351, n. 9, at 358 [77 S.Ct. 1138, 1143, 1 L.Ed.2d 1394].” N. L. R. B. v. Fruit & Vegetable Packers, Local 760, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964); N. L. R. B. v. Thompson Products, Inc., 141 F.2d 794 (C.A.9, 1944).

Unanimity of those favoring and those opposing legislation is, of course, of greater value. Apex Hosiery Co. v. Leader, 310 U.S. 469, n. 15 at 495, 60 S.Ct. 982, 84 L.Ed. 1311 (1940). The only situation where opponents’ statements have relevance is where the proponents made no response to them. State of Arizona v. State of California, 373 U.S. 546, n. 85 at 583, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The circumstances surrounding the debate on H.R. 320, especially as to the two quoted speeches, indicate that responses could not be expected. In the first place, the speeches on the legislation which eventually emerged as R.S. § 1979 consume hundreds of pages of the Congressional Globe. Even more important is that the two statements quoted above were made at times when response would have been unlikely. The first was made at a night session, while the second was delivered during a Saturday session.

9 . We find the traditional arguments in support of immunity applicable here; they are “(1) the danger of influencing public officials by threat of a law suit; (2) the deterrent effect of potential liability on men who are considering entering public life; (3) the drain on the valuable time of the official caused by insubstantial suits [which would require inordinate private record keeping, Bradley v. Fisher, 80 U.S. (13 Wall.) at 349] ; (4) the unfairness of subjecting officials to liability for the acts of their subordinates; (5) the theory that the official owes a duty to the public and not to the individual; (6) the feeling that the ballot and the formal removal proceeding are more appropriate ways to enforce honesty and efficiency of public officers.” Note, 66 Harv.L.Rev. 1285, 1295, n. 54 (1953).

10 . The failure of the Seventh Circuit to remand to the district court the cause against the corporation counsel substantiates this position. 291 F.2d 706 (1961); see also Phillips v. Nash, 311 F.2d 513 (C.A.7, 1962), cert. denied, 374 U.S. 809, 83 S.Ct. 1700, 10 L.Ed.2d 1033 (1963).

11 . We think it highly unlikely that defendant’s failure to proceed in accordance with the New Jersey statute, N.J.Stat. Ann. 2A:4-14 — 4-15, in and of itself, resulted in a denial of due process; nor would this appear to give rise to a denial of equal protection. But see Miller v. Rhay, 86 S.Ct. 1346, cert. granted, April 4, 1966, 34 L.W. 3341.

We also believe that appellant’s denial of a speedy trial probably did not violate his constitutional rights. See Ciesielski v. Ohio, 383 U.S. 411, 86 S.Ct. 1066, 15 L.Ed.2d 841, appeal dismissed March 7, 1966; United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (C.A.2, 1963) and cases and authorities cited therein; see also United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (Feb. 23, 1966).