NCJ Number
49363
Journal
New Hampshire Bar Journal Volume: 19 Issue: 2 Dated: (DECEMBER 1977) Pages: 93-108
Date Published
1977
Length
12 pages
Annotation
FOLLOWING A BRIEF SUMMARY OF THE DOCTRINE OF JUDICIAL IMMUNITY AND THE EXCEPTIONS WHICH HAVE BEEN ALLOWED BY CASE AND STATUTORY LAW, THE PROBLEM OF PROVIDING LEGAL REPRESENTATIONS FOR JUDGES WHO ARE SUED IS DISCUSSED.
Abstract
ENGLISH COMMON LAW GRANTED COMPLETE JUDICIAL IMMUNITY UNDER THE THEORY THAT A JUDGE COULD NOT BE IMPARTIAL IF THE THREAT OF SUIT WERE FOREVER PRESENT. MOST OF THE STATES IN THE UNITED STATES UPHELD THIS DOCTRINE WHENEVER A JUDGE IS SUED FOR MONETARY DAMAGES BECAUSE OF A JUDICIAL DECISION. HOWEVER, TWO MAJOR EXCEPTIONS TO THIS DOCTRINE HAVE ARISEN. A JUDGE MAY BE SUED FOR EQUITABLE RELIEF AND JUDGES MAY BE SUED IF THEIR ACTIONS EXCEED THEIR JURISDICTION. MOST EQUITABLE RELIEF CASES ARE FROM THE ADMINISTRATIVE LAW ASPECT OF THE JUDICIAL FUNCTION AND THEIR NUMBER HAS INCREASED AS A RESULT OF THE INCREASED NUMBER OF ADMINISTRATIVE FUNCTIONS ASSIGNED TO THE COURTS BY THE STATE LEGISLATURES. MODERN STATUTES AUTHORIZING PROCEEDINGS TO REDRESS DEPRIVATIONS OF STATE OR FEDERAL CONSTITUTIONAL RIGHTS HAVE ALSO INCREASED THE NUMBER OF JUDICIAL SUITS. THIS BRINGS UP THE PROBLEM OF PAYING FOR THE DEFENSE OF THE JUDGE. IN MANY STATES THE STATE ATTORNEY GENERAL ASSUMES THIS RESPONSIBILITY. WHEN SUCH USE OF PUBLIC FUNDS IS CHALLENGED, THE STATE SUPREME COURTS HAVE GENERALLY HELD THAT THE ATTORNEY GENERAL'S INTERVENTION WAS VALID. HOWEVER, CASES MAY ARISE IN WHICH THE STATE ATTORNEY GENERAL MAY REFUSE TO DEFEND THE JUDGE. FOR 350 YEARS THE COMMON LAW HAS REASONED THAT THE PUBLIC INTEREST IS SERVED BY PROTECTING THE JUDICIARY AT ALL LEVELS FROM CIVIL ACTIONS FOR DAMAGES ARISING OUT OF ACTS COMMITTED IN DECIDING CIVIL AND CRIMINAL CASES. IF THIS INDEPENDENCE OF THE JUDICIARY IS TO BE PRESERVED, THE LEGISLATURES WILL HAVE TO PROVIDE FOR SOME FORM OF DEFENSE MECHANISM WHENEVER A JUDGE IS SUED. MOST STATES PROVIDE NO STATE FUNDED LIABILITY INSURANCE FOR STATE COURT JUDGES AND A 1975 SURVEY CONDUCTED BY THE NATIONAL CONFERENCE OF STATE TRIAL JUDGES FOUND THAT ONLY 33 PERCENT OF THE STATES RESPONDING WOULD PROVIDE LEGAL REPRESENTATION OR WOULD PAY FOR PRIVATE COUNSEL IF A JUDGE IS SUED. THE NEW HAMPSHIRE LEGISLATURE IS URGED TO PASS A BILL TO PROVIDE FOR SUCH DEFENSE. (GLR)