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Though judges have immunity from lawsuit, in constitutional democracies judicial misconduct or bad personal behaviour is not completely protected. Depending on the jurisdiction, they may be criminally charged for courtroom behavior unrelated to the decision-making process (for example, by shooting someone and committing a murder unrelated to capital punishment by the state), bad decisions may be reversed by an appeals court, and judges may be removed by other judges on the same or higher court (in the United States, a judicial council), by a recall election, by the next regular election, or following impeachment by a legislature.
Historically, judicial immunity was associated with the English common law idea that "the King can do no wrong" in the eyes of the courts, because the courts are created by the sovereign (sovereign immunity). Judges, the King's delegates for dispensing justice, accordingly "ought not to be drawn into question for any supposed corruption [for this tends] to the slander of the justice of the King". An example of applying judicial immunity: a judge is not liable for a slander or libel suit for statements made about someone during a trial, no matter how corrupt that act was.
In the United Kingdom, tribunals are considered judicial in nature and so judicial immunity applies to them at common law. This was accepted by the Employment Appeals Tribunal and subsequently the Court of Appeal of England and Wales in respect of police misconduct hearings constituted under the Police (Discipline) Regulations 1985 (since superseded by the Police (Conduct) Regulations 2008) in Heath v Commissioner of Police for the Metropolis  EWCA Civ 943. However, in P v Commissioner of Police of the Metropolis  UKSC 65, in which a police officer (an officer of the Crown, but under the Equality Act 2010 treated as an employee in employment discrimination cases) sought review of her dismissal as constituting disability discrimination due to post-traumatic stress disorder, the Supreme Court ruled that the Employment Equality Framework Directive (implemented by the 2010 Act) provided directly applicable rights of access to justice in cases of employment discrimination, which, given the supremacy of EU law, overrode the common law rule of judicial immunity.
In the United States, judicial immunity is among a handful of forms of absolute immunity, along with prosecutorial immunity, legislative immunity, and witness immunity. The U.S. Supreme Court has characterized judicial immunity as providing "the maximum ability [of judges] to deal fearlessly and impartially with the public". The justification is as follows: because of the likelihood of innocent individuals being convicted in a court of law under false claims, the "burden" of being subjected to a court of law (a trial) would "dampen" the judges "enthusiasm" or "passion". Opponents of judicial immunity argue that this doctrine is not adequately justified. For example, judges could be shielded from any personal capacity liability, and still be subject to official capacity liability so that they may be held accountable for their injurious acts – thus "balancing" the "evil" to better protect the fundamental rights of victims.
Judicial immunity does not protect judges from suits stemming from administrative decisions made while off the bench, like hiring and firing decisions. But immunity generally does extend to all judicial decisions in which the judge has proper jurisdiction, even if a decision is made with "corrupt or malicious intent". In 1997 West Virginia judge Troisi became so irritated with a rude defendant, he stepped down from the bench, took off his robe, and bit the defendant on the nose. He pleaded no contest to state charges but was acquitted of federal charges of violating the defendant's civil rights. He spent five days in jail and was put on probation.
Because the immunity is attached to the judicial nature of the acts, not the official title of the officeholder, judicial immunity also applies to administrative hearings, although in some situations, only qualified immunity applies. In determining whether absolute or qualified immunity should be provided, the U.S. Supreme Court has identified the following factors, according to the Shriver Center's Federal Practice Manual for Legal Aid Attorneys:
(a) The need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.
The following cases seem relevant to this issue:
Stump v. Sparkman (1978)
One of the leading decisions on judicial immunity is Stump v. Sparkman. In 1971, Judge Harold D. Stump granted a mother's petition to have a tubal ligation performed on her 15-year-old daughter, whom the mother alleged was "somewhat retarded". The daughter was told that the surgery was to remove her appendix. In 1975 the daughter, going by her then-married name of Linda Sparkman, learned that she had been sterilized. She sued the judge. The U.S. Supreme Court ruled that the judge could not be sued, because the decision was made in the course of his duties. In that regard, it was irrelevant that the judge's decision may have been contrary to law and morally reprehensible.
Harris v. Harvey (1979)
Judges usually, but not always, receive immunity from being sued. One exception where a judge was sued and lost is Harris v. Harvey (1979). Sylvester Harris was an African-American police lieutenant in Racine, Wisconsin, attacked in a variety of ways by Judge Richard G. Harvey. Harris sued Harvey because of (a) comments Harvey made to the news media, (b) threatening letters Harvey wrote to city and county officials who attempted to defend Harris, and (c) parties Harvey held for ranking state officials during which he attempted to get Harris removed from law enforcement. The jury concluded that Harvey was not eligible for judicial immunity for these actions, as such acts which were not part of the judge's normal duties (i.e. were "outside his jurisdiction"). The jury awarded Harris $260,000 damages. Another judge later added $7,500 legal fees. The United States Court of Appeals for the Seventh Circuit concurred with the jury's decision. Judge Harvey petitioned the Seventh Circuit court for an en banc rehearing, which was denied. His petition to the Supreme Court was also denied. Harris v. Harvey is the first case in the United States where a sitting court judge has been sued and lost in a civil action; it is a binding precedent in the Seventh Circuit and is persuasive authority in the other circuits.
Supreme Court of Virginia v. Consumers Union (1980)
In Supreme Court of Virginia v. Consumers Union (1980), the U.S. Supreme Court ruled that the Supreme Court of Virginia did not have immunity in federal court from being enjoined in its enforcement capacity where state law gave the court independent authority to initiate certain proceedings against attorneys. Consumers Union was hindered from compiling an attorney directory because many attorneys they contacted declined to provide requested information out of fear of violating attorney conduct regulations promulgated by the Supreme Court of Virginia. Consumers Union filed a lawsuit in federal court against the Supreme Court of Virginia and others, under 42 U.S.C. § 1983, seeking to have the regulation declared unconstitutional and to enjoin the defendants from enforcing it. The U.S. Supreme Court affirmed the Supreme Court of Virginia's legislative immunity:
If the sole basis for [Consumer Union's] § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against appellants. ... As already indicated, § 54–74 gives the Virginia Court independent authority of its own to initiate proceedings against attorneys. For this reason, the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were. ... If prosecutors and law enforcement personnel cannot be proceeded against for declaratory relief, putative plaintiffs would have to await the institution of state court proceedings against them in order to assert their federal constitutional claims. This is not the way the law has developed, and, because of its own inherent and statutory enforcement powers, immunity does not shield the Virginia Court and its chief justice from suit in this case.— Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-37 (1980)
Mireles v. Waco (1991)
In the case of Mireles v. Waco (1991), when a defense lawyer failed to appear for a scheduled hearing, the judge not only issued a bench warrant for his arrest, but instructed the police sent to arrest him to "rough him up a little" to teach him not to skip court dates. Although this was entirely unprofessional and possibly criminal, the judge was held, by the Supreme Court, to have absolute immunity from a lawsuit arising from the resulting beating, because the misbehavior occurred entirely within his activities as a judge presiding over a court.
- Shaman, Jeffrey (January 1990). "Judicial Immunity from Civil and Criminal Liability". San Diego Law Review. 27: 1.
- Floyd & Barker, 12 Co. Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (Star Chamber 1607).
- Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson  1 QB 431, Court of Appeal (England and Wales) per Lopes LJ at p 451.
- Sirros v Moore  QB 118, Court of Appeal (England and Wales) per Ormrod LJ at p 145.
- Heath v Commissioner of Police for the Metropolis  EWCA 943,  ICR 329, Court of Appeal (Civil Division)
- P v Commissioner of Police of the Metropolis  UKSC 65 (25 October 2017), Supreme Court of the United Kingdom
- Sikand, Maya; Profumo, Laura (8 November 2017). "The primacy of EU law: asserting the right to equal treatment v judicial immunity". Garden Court Chambers.
- Barr v. Matteo, 360 U.S. 564 (1959)
- Jones, Ashby (November 12, 2009). "New Lawsuits Try to Pierce Shield of Judicial Immunity". The Wall Street Journal.
- "Judge Who Bit Nose of Defendant Faces Prison". Los Angeles Times. October 11, 1997. Retrieved September 25, 2013.
- "Judge Is Acquitted in Nose-Biting Case". Lost Angeles Times. May 7, 1998. Retrieved September 25, 2013.
- Meiners, Roger; Al. H. Ringleb; Frances L. Edwards (2008). The Legal Environment of Business, Tenth Edition. p. 43. ISBN 978-0-324-65436-3.
- "8.2 Suits Against Public Officials in Their Individual Capacity". Federal Practice Manual for Legal Aid Attorneys. Sargent Shriver National Center on Poverty Law. 2016. Retrieved 4 May 2018.
- 605 F.2d 330 (7th Cir. 1979)
- Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979).
- Schuck, Peter H. (1989). "The Civil Liability of Judges in the United States". The American Journal of Comparative Law. 37 (4): 655–673. doi:10.2307/840220. ISSN 0002-919X.
- "Google Scholar". scholar.google.com. Retrieved 2020-08-22.
- "Syl Harris - The Black Cop Who Challenged Judicial Immunity, and Won". Sylvester Harris. Retrieved 2020-08-22.
- Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 719–720 (1980)
- 446 U.S. at 724–727
- 446 U.S. at 734–737
- 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9
- Abimbola A. Olowofoyeku (1994). Suing Judges: A Study of Judicial Immunity. Clarendon Press. ISBN 978-0198257936.