This case revolves around liability of state judge to injunctive relief and recovery of fees and costs. It does explain other liability issues, useful in misconduct, civil suits and other brought against state judges.
All of the cases cited were either King's court judges or King's court, not common law which IS the Law of the Land in America. Making all of these irrelevent to the people or America. They are used by the Supreme Court to protect other judicial members (their profession) from prosecution.
NOTE specifically the King's courts were superior to the common law People's courts in England, in contrast with America in which common Law is the Rule of Law, not King's Law or King's perogative. Which makes their use to afford absolute or qualified immunity to judges andf other officials in direct violation of the constitutions which demand equal Law, and common Law remedies.
Pulliam v. Allen 466 U.S. 522; 104 S. Ct. 1970; 80 L. Ed.2d 565; 52 U.S.L.W. 4525; 690 F.2d 376;
PULLIAM, MAGISTRATE FOR THE COUNTY OF CULPEPER, VIRGINIA v. ALLEN ET AL.
No. 82-1432
SUPREME COURT OF THE UNITED STATES
466 U.S. 522; 104 S. Ct. 1970; 80 L. Ed.2d 565;
52 U.S.L.W. 4525
November 2, 1983, Argued
May 14, 1984, Decided
PRIOR HISTORY: [***1]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
DISPOSITION: 690 F.2d 376, affirmed.
SYLLABUS: After respondents were arrested for nonjailable
misdemeanors, petitioner, a Magistrate in a Virginia county,
imposed bail, and when respondents were unable to meet the bail
petitioner committed them to jail. Subsequently, respondents
brought an action against petitioner in Federal District Court
under 42 U. S. C. @ 1983, claiming that petitioner's practice of
imposing bail on persons arrested for nonjailable offenses under
Virginia law and of incarcerating those persons if they could not
meet the bail was unconstitutional. The court agreed and enjoined
the practice, and also awarded respondents costs and attorney's
fees under the Civil Rights Attorney's Fees Awards Act of 1976.
Determining that judicial immunity did not extend to injunctive
relief under @ 1983 and that prospective injunctive relief
properly had been awarded against petitioner, the Court of Appeals
affirmed the award of attorney's fees.
Held:
1. Judicial immunity is not a bar to prospective injunctive
relief against a judicial officer, such as petitioner, acting in
her judicial capacity. Pp. 528-543. [***2]
(a) Common-law principles of judicial immunity were incorporated
into the United States judicial system and should not be abrogated
absent clear legislative intent to do so. Although there were no
injunctions against common-law judges, there is a common-law
parallel to the @ 1983 injunction at issue here in the collateral
prospective relief available against judges through the use of the
King's prerogative writs in England. The history of these writs
discloses that the common-law rule of judicial immunity did not
include immunity from prospective collateral relief. Pp. 528-536.
(b) The history of judicial immunity in the United States is
fully consistent with the common-law experience. There never has
been a rule of absolute judicial immunity from prospective relief,
and there is no evidence that the absence of that immunity has had
a chilling effect on judicial independence. Limitations on
obtaining equitable relief serve to curtail or prevent harassment
of judges through suits against them by disgruntled litigants.
Collateral
PAGE 3 466 U.S. 522, *; 104 S. Ct.
1970, **; 1984 U.S. LEXIS
75, ***2; 80 L. Ed. 2d 565
injunctive relief against a judge, particularly when that relief is
available through @ 1983, also raises a concern relating to the
proper functioning [***3] of federal-state relations, but that
concern has been addressed directly as a matter of comity and
federalism, independent of principles of judicial immunity. While
there is a need for restraint by federal courts called upon to
enjoin actions of state judicial officers, there is no support for
a conclusion that Congress intended to limit the injunctive relief
available under @ 1983 in a way that would prevent federal
injunctive relief against a state judge. Rather, Congress intended
@ 1983 to be an independent protection for federal rights, and
there is nothing to suggest that Congress intended to expand the
common-law doctrine of judicial immunity to insulate state judges
completely from federal collateral review. Pp. 536-543.
2. Judicial immunity is no bar to the award of attorney's fees
under the Civil Rights Attorney's Fees Awards Act. Congress has
made clear in the Act its intent that attorney's fees be available
in any action to enforce @ 1983. And the legislative history
confirms Congress' intent that an attorney's fee award be made
available even when damages would be barred or limited by immunity
doctrines. Pp. 543-544.
COUNSEL: Gerald L. Baliles, Attorney General of Virginia, [***4]
argued the cause for petitioner. With him on the briefs were
William G. Broaddus, Chief Deputy Attorney General, Donald C. J.
Gehring and Elizabeth B. Lacy, Deputy Attorneys General, and Jerry
P. Slonaker, Assistant Attorney General.
Deborah Chasen Wyatt argued the cause for respondents. With her
on the brief was John Calvin Jeffries, Jr. *
* Briefs of amici curiae urging reversal were filed for the
State of Minnesota et al. by Hubert H. Humphrey III, Attorney
General of Minnesota, Kent G. Harbison, Chief Deputy Attorney
General, Douglas C. Blomgren and D. Douglas Blanke, Special
Assistant Attorneys General, and the Attorneys General for their
respective States as follows: Charles A. Graddick of Alabama,
Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, John
Steven Clark of Arkansas, John Van de Kamp of California, Duane
Woodard of Colorado, Joseph Lieberman of Connecticut, Charles M.
Oberly III of Delaware, Jim Smith of Florida, Michael J. Bowers of
Georgia, Tany S. Hong of Hawaii, Jim Jones of Idaho, Neil F.
Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J.
Miller of Iowa, Robert T. Stephan of Kansas, Steven L. Beshear of
Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of
Maine, Stephan H. Sachs of Maryland, Francis X. Bellotti of
Massachusetts, Frank J. Kelley of Michigan, William A. Allain of
Mississippi, John D. Ashcroft of Missouri, Michael T. Greely of
Montana, Paul L. Douglas of Nebraska, Brian McKay of Nevada,
Gregory H. Smith of New Hampshire, Irwin I. Kimmelman of New
Jersey, Robert Abrams of New York, Rufus L. Edmisten of North
Carolina, Robert O. Wefald of North Dakota, Anthony J. Celebrezze,
Jr., of Ohio, Michael C. Turpen of Oklahoma, David Frohnmayer of
Oregon, Leroy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of
Rhode Island, T. Travis Medlock of South Carolina, Mark V.
Meierhenry of South Dakota, William M. Leech, Jr., of Tennessee,
Jim Mattox of Texas, David L. Wilkinson of Utah, John J. Easton,
Jr., of Vermont, Kenneth O. Eikenberry of Washington, Chauncey H.
Browning, Jr., of West Virginia, Bronson C. La Follette of
Wisconsin, and A. G. McClintock of Wyoming; for the American Bar
Association by Morris Harrell, W. Ervin James, and Phillip J. Roth;
for the Conference of Chief Justices by Paul L. Friedman and
Michael D. Sullivan; for the Honorable Lawrence H. Cooke,
PAGE 4 466 U.S. 522, *; 104 S. Ct.
1970, **; 1984 U.S. LEXIS
75, ***4; 80 L. Ed. 2d 565
Chief Judge of the State of New York, by Paul A. Feigenbaum,
Michael Colodner, and Kenneth Falk; and for the Honorable Abraham
J. Gafni, Court Administrator of Pennsylvania, by Howland W.
Abramson and Charles W. Johns.
Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union et al. by Burt Neuborne and E.
Richard Larson; and for the National Association of Criminal
Defense Lawyers by J. Lloyd Snook III. [***5]
JUDGES: BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J.,
filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST
and O'CONNOR, JJ., joined, post, p. 544.
OPINION BY: BLACKMUN
OPINION: [*524] [**1972]JUSTICE BLACKMUN delivered the opinion of the Court.
This case raises issues concerning the scope of judicial
immunity from a civil suit that seeks injunctive and declaratory
relief under @ 1 of the Civil Rights Act of 1871, as amended,
42 U. S. C. @ 1983, and from fee awards made under the Civil
Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, as
amended, 42 U. S. C. @ 1988.
Petitioner Gladys Pulliam is a state Magistrate in Culpeper
County, Va. Respondents Richmond R. Allen and Jesse W. Nicholson
were plaintiffs in a @ 1983 action against Pulliam brought in the
United States District Court for the Eastern District of Virginia.
They claimed that Magistrate Pulliam's practice of imposing bail on
persons arrested for nonjailable [*525] offenses under Virginia
law and of incarcerating those persons if they could not meet the
bail was unconstitutional. The District Court agreed and enjoined
the practice. [***6] That court also awarded respondents $
7,691.09 in costs and attorney's fees under @ 1988. The United
States Court of Appeals for the Fourth Circuit rejected
petitioner's claim that the award of attorney's fees against her
should have been barred by principles of judicial immunity. We
agree with the Court of Appeals and affirm the award.
I
Respondent Allen was arrested in January 1980 for allegedly
using abusive and insulting language, a Class 3 misdemeanor under
Va. Code @ 18.2-416 (1982). The maximum penalty for a Class 3
misdemeanor is a $ 500 fine. See @ 18.2-11(c). Petitioner set a
bond of $ 250. Respondent Allen was unable to post the bond, and
petitioner committed Allen to the Culpeper County jail, where he
remained for 14 days. He was then tried, found guilty, fined, and
released. The trial judge subsequently reopened the judgment and
reversed the conviction. Allen then filed his @ 1983 claim,
seeking declaratory and injunctive relief against petitioner's
practice of incarcerating persons waiting trial for nonincarcerable
offenses. n1
- - - - - -Footnotes-- - - - - - - - -
PAGE 5 466 U.S. 522, *525; 104 S. Ct.
1970, **1972; 1984 U.S. LEXIS
75, ***6; 80 L. Ed. 2d 565
n1 Respondent Allen also challenged the failure of the trial
judge to provide a first appearance, to appoint counsel, and to
advise Allen of his rights during incarceration. The District
Court dismissed the claim against the trial judge because "he
played no direct role in the pretrial detention of either
plaintiff." App. 31-32.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***7]
Respondent Nicholson was incarcerated four times within the 2-month period immediately before and after the filing of Allen's
complaint. His arrests were for alleged violations of Va. Code @
18.2-388 (1982), being drunk in public. Section 18.2-388 is a Class
4 misdemeanor for which the maximum penalty is a $ 100 fine. See
@ 18.2-11(d). Like Allen, respondent Nicholson was incarcerated
for periods of two to six [*526] days for failure to post bond.
He intervened in Allen's suit as a party plaintiff.
The District Court found it to be petitioner's practice to
require bond for nonincarcerable offenses. The court declared the
practice to be a violation of due process and equal protection and
enjoined it. n2 The [**1973] court also found that respondents,
having substantially prevailed on their claims, were entitled to
costs, including reasonable attorney's fees, in accordance with @
1988. It directed respondents to submit a request for costs to
petitioner within 10 days. App. 23. Petitioner did not appeal
this order.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Respondents had challenged both the constitutionality of the
Virginia pretrial detention statute and petitioner's practice of
imposing bail for nonincarcerable offenses. Virginia Code @
19.2-74.1 (later repealed by 1981 Va. Acts, ch. 382) prohibited the
retention in custody of any person arrested for a misdemeanor for
which he could not receive a jail sentence. The statute contained
an exception for those persons arrested for profane swearing or
being drunk in public, in violation of @ 18.2-388. See 1980 Va.
Acts, ch. 344. Section 19.2-74.A.1, however, authorized pretrial
detention of any such person "believed by the arresting officer to
be likely to disregard a summons" or "reasonably believed by the
arresting officer to be likely to cause harm to himself or to any
other person."
The District Court declared both @ 19.2-74 and @ 19.2-74.1
unconstitutional "[to] the extent that [they] authorize the
incarceration of persons charged with misdemeanors for which no
jail time is authorized, solely because they cannot meet bond."
App. 22. It enjoined petitioner from "[the] practice and course of
conduct in Culpeper County, Virginia, under which persons are
confined prior to trial on offenses for which no jail time is
authorized solely because they cannot meet bond." Id., at 23.
Although the District Court concluded that respondents had been
held in jail "solely because of their inability to make bail," id.,
at 26, it also directed that "[any] pretrial detention for persons
arrested for Class 3 and Class 4 misdemeanors on the grounds that
the person is lawfully deemed likely to be a danger to himself or
to others may last only so long as such danger persists and must
cease when the condition which created the danger changes or
abates, or arrangements are made for release of the person into
third-party custody under
PAGE 6 466 U.S. 522, *526; 104 S. Ct.
1970, **1973; 1984 U.S. LEXIS
75, ***7; 80 L. Ed. 2d 565
circumstances which abate the danger." Id., at 22.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***8]
Respondents submitted a request for fees and costs totalling $
7,691.09. The fee component of this figure was $ 7,038. [*527]
Petitioner filed objections and prayed "that the Court reduce the
request of Plaintiffs for attorney's fees." Id., at 33. The court
found the fees figure reasonable and granted fees and costs in the
requested amount.
Petitioner took an appeal from the order awarding attorney's
fees against her. She argued that, as a judicial officer, she was
absolutely immune from an award of attorney's fees. The Court of
Appeals reviewed the language and legislative history of @ 1988. It
concluded that a judicial officer is not immune from an award of
attorney's fees in an action in which prospective relief properly
is awarded against her. Since the court already had determined
that judicial immunity did not extend to injunctive and declaratory
relief under @ 1983, n3 the court concluded that prospective relief
properly had been awarded against petitioner. It therefore
affirmed the award of attorney's fees. Allen v. Burke, 690 F.2d
376 (1982).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 See Timmerman v. Brown, 528 F.2d 811, 814 (1975), rev'd on
other grounds sub nom. Leeke v. Timmerman, 454 U.S. 83 (1981).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***9]
II
We granted certiorari in this case, 461 U.S. 904 (1983), to
determine, as petitioner phrased the question, "[whether] Judicial
Immunity Bars the Award of Attorney's Fees Pursuant to 42 U. S. C.
@ 1988 Against a Member of the Judiciary Acting in his Judicial
Capacity." See the initial leaf of the petition for certiorari. As
the Court of Appeals recognized, the answer to that question
depends in part on whether judicial immunity bars an award of
injunctive relief under @ 1983. The legislative history of @ 1988
clearly indicates that Congress intended to provide for attorney's
fees in cases where relief properly is granted against officials
who are immune from damages awards. H. R. Rep. No. 94-1558, p. 9
(1976). n4 There is no indication, however, that Congress [*528]
intended to provide for a fee award if the official was immune from
the underlying relief on which the award was premised. See Supreme
Court of Virginia v. Consumers Union of United States, Inc., 446
U.S. 719, 738-739 (1980). Before addressing the specific provisions
of @ 1988, therefore, we turn to the more fundamental question,
that is, whether a [**1974] judicial [***10] officer acting
in her judicial capacity should be immune from prospective
injunctive relief. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 "[While] damages are theoretically available under the
statutes covered by H. R. 15460, it should be observed that, in
some cases, immunity doctrines and
PAGE 7 466 U.S. 522, *528; 104 S. Ct.
1970, **1974; 1984 U.S. LEXIS
75, ***10; 80 L. Ed. 2d 565
special defenses, available only to public officials, preclude or
severely limit the damage remedy. Consequently awarding counsel
fees to prevailing plaintiffs in such litigation is particularly
important and necessary if Federal civil and constitutional rights
are to be adequately protected. To be sure, in a large number of
cases brought under the provisions covered by H. R. 15460, only
injunctive relief is sought, and prevailing plaintiffs should
ordinarily recover their counsel fees." (Footnote omitted.)
n5 This Court's Rule 21.1(a) provides: "The statement of a
question presented will be deemed to comprise every subsidiary
question fairly included therein." The question whether judicial
immunity should have barred the injunctive relief awarded in this
case is "fairly included" in the question presented.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[***11]
III
Although injunctive relief against a judge rarely is awarded,
the United States Courts of Appeals that have faced the issue are
in agreement that judicial immunity does not bar such relief. n6
This Court, however, has never decided the question. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Although the Court in Supreme Court of Virginia v. Consumers
Union of United States, Inc., 446 U.S. 719, 735 (1980), did state
that the Courts of Appeals appeared to be divided on the question,
an examination of the recent pronouncements of those courts
indicates that they are in agreement that judicial immunity is no
bar to injunctive relief. See, e. g., In re Justices of Supreme
Court of Puerto Rico, 695 F.2d 17 (CA1 1982); Heimbach v. Lyons,
597 F.2d 344 (CA2 1979); Timmerman v. Brown, supra; Slavin v.
Curry, 574 F.2d 1256 (CA5), vacated as moot, 583 F.2d 779 (1978);
WXYZ, Inc. v. Hand, 658 F.2d 420 (CA6 1981); Harris v. Harvey, 605
F.2d 330 (CA7 1979), cert. denied, 445 U.S. 938 (1980); Richardson
v. Koshiba, 693 F.2d 911 (CA9 1982).
The Eighth Circuit at one time seems to have taken contradictory
positions on whether judges are immune from declaratory and
injunctive relief. Compare Koen v. Long, 428 F.2d 876 (1970),
aff'g 302 F.Supp. 1383, 1389 (ED Mo. 1969) (no immunity), cert.
denied, 401 U.S. 923 (1971), with Smallwood v. United States, 486
F.2d 1407 (1973), aff'g without opinion, 358 F.Supp. 398, 403 (ED
Mo.) (immunity), and Tate v. Arnold, 223 F.2d 782, 786 (1955)
(same). That court indicated in 1975, however, that "[this]
circuit has never decided whether those enjoying judicial immunity
from damage suits are similarly immune from suits seeking equitable
and injunctive relief," see Bonner v. Circuit Court of St. Louis,
Missouri, 526 F.2d 1331, 1334, and it now expressly has declined to
do so. See R. W. T. v. Dalton, 712 F.2d 1225, 1232, n. 9 (1983).
[***12]
n7 See Supreme Court of Virginia v. Consumers Union of United
States, Inc., 446 U.S., at 735, and n. 14.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - -
PAGE 8 466 U.S. 522, *528; 104 S. Ct.
1970, **1974; 1984 U.S. LEXIS
75, ***12; 80 L. Ed. 2d 565
[*529] The starting point in our own analysis is the common
law. Our cases have proceeded on the assumption that common-law
principles of legislative and judicial immunity were incorporated
into our judicial system and that they should not be abrogated
absent clear legislative intent to do so. See Pierson v. Ray, 386
U.S. 547, 554-555 (1967); Tenney v. Brandhove, 341 U.S. 367 (1951).
Accordingly, the first and crucial question is whether the common
law recognized judicial immunity from prospective collateral
relief.
At the common law itself, there was no such thing as an
injunction against a judge. Injunctive relief was an equitable
remedy that could be awarded by the Chancellor only against the
parties in proceedings before other courts. See 2 J. Story, Equity
Jurisprudence para. 875, p. 72 (11th ed. 1873). This limitation on
the use of the injunction, however, says nothing about the scope of
judicial immunity. [***13] And the limitation derived not from
judicial immunity, but from the substantive confines of the
Chancellor's authority. Ibid.
Although there were no injunctions against common-law judges,
there is a common-law parallel to the @ 1983 injunction at issue
here. That parallel is found in the collateral prospective relief
available against judges through the use of the King's prerogative
writs. A brief excursion into common-law history helps to explain
the relevance of these writs to the question whether principles of
common-law immunity bar injunctive relief against a judicial
officer.
[*530] The doctrine of judicial immunity and the limitations
on prospective collateral relief with which we are concerned have
related histories. Both can be traced to the successful efforts of
the King's Bench to ensure the supremacy of the common-law courts
over their 17th- and 18th-century rivals. See 5 W. Holdsworth, A
History of [**1975] English Law 159-160 (3d ed. 1945)
(Holdsworth).
A number of courts challenged the King's Bench for authority in
those days. Among these were the Council, the Star Chamber, the
Chancery, the Admiralty, and the ecclesiastical courts. Ibid
[***14] . In an effort to assert the supremacy of the common-law
courts, Lord Coke forbade the interference by courts of equity with
matters properly triable at common law. See Heath v. Rydley, Cro.
Jac. 335, 79 Eng. Rep. 286 (K. B. 1614). Earlier, in Floyd and
Barker, 12 Co. Rep. 23, 77 Eng. Rep. 1305 (1607), Coke and his
colleagues of the Star Chamber had declared the judges of the
King's Bench immune from prosecution in competing courts for
their judicial acts. In doing so, they announced the theory upon
which the concept of judicial immunity was built. The judge
involved in Floyd and Barker was a common-law Judge of Assize who
had presided over a murder trial. He was then charged in the Star
Chamber with conspiracy. The court concluded that the judges of the
common law should not be called to account "before any other Judge
at the suit of the King." Id., at 24, 77 Eng. Rep., at 1307.
"[And] it was agreed, that insomuch as the Judges of the realm
have the administration of justice, under the King, to all his
subjects, they ought not to be drawn into question for any supposed
corruption, which extends to the annihilating of a record,
[***15] or of any judicial proceedings before them, or tending to
the slander of the justice of the King, which will trench to the
scandal of the King himself, except it be before the King himself;
for they [*531] are only to make an account to God and the King,
and not to answer to
PAGE 9 466 U.S. 522, *531; 104 S. Ct.
1970, **1975; 1984 U.S. LEXIS
75, ***15; 80 L. Ed. 2d 565
any suggestion in the Star-Chamber." Id., at 25, 77 Eng. Rep., at
1307.
As this quoted language illustrates, Coke's principle of
immunity extended only to the higher judges of the King's courts.
See 5 Holdsworth, at 159-160. In time, Coke's theory was expanded
beyond his narrow concern of protecting the common-law judges from
their rival courts, so that judges of all courts were accorded
immunity, at least for actions within their jurisdiction. n8 See
Scott v. Stansfield, 3 L. R. Ex. 220 (1868) (immunity extended to
a county court, an inferior court of record; reliance placed on
precedent extending immunity to the court of a coroner and to a
court-martial, an inferior court and a court not of record);
Haggard v. Pelicier Freres [1892] A. C. 61 (1891) (judge of
Consular Court of Madagascar given same immunity as judge of a
court of record). In addition, the theory itself [***16] was
refined, its focus shifting from the need to preserve the King's
authority to the public interest in independent judicial
decisionmaking. See Taaffe v. Downes, reprinted in footnote in
Calder v. Halket, 13 Eng. Rep. 12, 18, n. (a) (P. C. 1840) ("An
action before one Judge for what is done by another, is in the
nature of an Appeal; and is the Appeal from an equal to an equal.
It is a solecism in the law . . . that the Plaintiff's case is
against the independence of the Judges").
- - - - - - - -Footnotes- - - - - - - - - - - - -
n8 See Feinman & Cohen, Suing Judges: History and Theory, 31 S.
C. L. Rev. 201, 211 (1980). As will be demonstrated, it was not
always easy to determine what actions were within a court's
jurisdiction. A similar limitation was imposed on the King's
authority to control the judge by use of the prerogative writs. It
appears, however, that the jurisdictional limit was taken more
seriously -- offering the judge more protection -- when the issue
was personal liability for an erroneous judicial action than when
the question involved the reach of the prerogative writs. Compare
Gwinne v. Poole, 2 Lut. 935, 125 Eng. Rep. 522 (C. P. 1692), with
Gould v. Gapper, 5 East. 345, 102 Eng. Rep. 1102 (K. B. 1804).
- - - - - - - - - -End Footnotes- - - - - - - - -[***17]
[*532] By 1868, one of the judges of the Court of Exchequer
explained judicial immunity in language close to our contemporary
understanding of the doctrine:
"It is essential in all courts that the judges who are appointed to
administer the law should be permitted to administer it under the
protection of the law, independently and freely, without favor and
without fear. This provision of the law is not for the protection
or benefit of a malicious or corrupt judge, but for the [**1976]
benefit of the public, whose interest it is that the judges should
be at liberty to exercise their functions with independence, and
without fear of consequences." Scott v. Stansfield, 3 L. R. Ex., at
223, quoted in Bradley v. Fisher, 13 Wall. 335, 350, n. (1872).
It is in the light of the common law's focus on judicial
independence that the collateral control exercised by the King's
Bench over rival and inferior courts has particular significance.
PAGE 10 466 U.S. 522, *532; 104 S. Ct.
1970, **1976; 1984 U.S. LEXIS
75, ***17; 80 L. Ed. 2d 565
The King's Bench exercised significant collateral control over
inferior and rival courts through the use of prerogative writs.
The writs included habeas corpus, certiorari, prohibition,
mandamus, [***18] quo warranto, and ne exeat regno. 1
Holdsworth, at 226-231 (7th ed. 1956). Most interesting for our
current purposes are the writs of prohibition and mandamus. n9 The
writs issued against a judge, in theory to prevent [*533] him
from exceeding his jurisdiction or to require him to exercise it.
Id., at 228-229. In practice, controlling an inferior court in the
proper exercise of its jurisdiction meant that the King's Bench
used and continues to use the writs to prevent a judge from
committing all manner of errors, including departing from the rules
of natural justice, proceeding with a suit in which he has an
interest, misconstruing substantive law, and rejecting legal
evidence. See 1 Halsbury's Laws of England paras. 76, 81, 130 (4th
ed. 1973); Gordon, The Observance of Law as a Condition of
Jurisdiction, 47 L. Q. Rev. 386, 394 (1931). n10
- - - - - - - - - -Footnotes- - - - - - - - - - - -
n9 The writ of prohibition appears to have been used more than
the writ of mandamus to control inferior courts. Mandamus could
issue to any person in respect of anything that pertained to his
office and was in the nature of a public duty. See 1 Halsbury's
Laws of England para. 81 (4th ed. 1973). The other prerogative
writs are also of some relevance here. The writ of certiorari, for
instance, issued to remove proceedings from an inferior tribunal to
ensure that the court was keeping within its jurisdiction and
effectuating the rules of the common law. Once a writ of
certiorari was delivered to a judge, he was forbidden to proceed
further in the case. Failure to suspend proceedings amounted to a
contempt. See R. Pound, Appellate Procedure in Civil Cases 61
(1941). [***19]
n10 Gordon observes that the fiction that misconstruction of
substantive law constitutes action in excess of jurisdiction has
been abandoned, and the textbooks now show disregard of a statute
as a ground for prohibition distinct from want or excess of
jurisdiction. Gordon, 47 L. Q. Rev., at 394.
- - - - - - - - -End Footnotes- - - - - - - - - - -
Examples are numerous in which a judge of the King's Bench, by
issuing a writ of prohibition at the request of a party before an
inferior or rival court, enjoined that court from proceeding with
a trial or from committing a perceived error during the course of
that trial. See generally Dobbs, The Decline of Jurisdiction by
Consent, 40 N. C. L. Rev. 49, 60-61 (1961). The writs were
particularly useful in exercising collateral control over the
ecclesiastical courts, since the King's Bench exercised no direct
review over those tribunals. In Shatter v. Friend, 1 Show. 158, 89
Eng. Rep. 510 (K. B. 1691), for example, the court granted a
prohibition against the Spiritual Court for refusing to allow the
defendant's proof of payment [***20] of a 10-pound legacy, one
of the justices concluding that "it was an unconscionable
unreasonable thing to disallow the proof." Id., at 161, 89 Eng.
Rep., at 512. n11
- - - - - - - -Footnotes- - - - - - - - - - -
n11 In Harrison v. Burwell, 2 Vent. 9, 86 Eng. Rep. 278 (K. B.
1670), the King's Bench granted a writ of prohibition against the
Spiritual Court that had declared void as incestuous a marriage
between a man and the woman who had
PAGE 11 466 U.S. 522, *533; 104 S. Ct.
1970, **1976; 1984 U.S. LEXIS
75, ***20; 80 L. Ed. 2d 565
been married to his great uncle. The court concluded that the
Spiritual Court had misinterpreted the marriage as barred by the
Levitical decree and that it had no jurisdiction to declare void a
marriage not barred by that decree. See also Serjeant v. Dale, 2
Q. B. D. 558 (1877) (prohibition to the Court of Arches issued to
prevent a bishop from hearing a case in which he had an interest);
White v. Steele, 12 Scott N. R. 383, 12 C. B. 383 (1862) (writ of
prohibition issued to a Judge of the Arches Court of Canterbury
until he allowed the introduction of evidence the common law
required to be admitted).
Similar use of the writ can be found in more recent cases. In
King v. North, [1927] 1 K. B. 491 (1926), a vicar had been ordered
by the Consistory Court to pay for the restoration of a fresco he
was alleged to have caused to be painted over. He sought a writ of
prohibition, claiming that he had had no notice or opportunity to
be heard. The court concluded that deprivation of property without
notice and an opportunity to be heard was contrary to the general
laws of the land, and granted the prohibition.
- - - - - - - -End Footnotes- - - - - - - - -[***21]
[*534] [**1977] In Gould v. Gapper, 5 East. 345, 102 Eng.
Rep. 1102 (K. B. 1804), the court made explicit what had been
implicit in a number of earlier decisions. It held that a writ of
prohibition would be granted not only when a court had exceeded its
jurisdiction, but also when the court, either a noncommon-law court
or an inferior common-law court, had misconstrued an Act of
Parliament or, acting under the rules of the civil law, had decided
otherwise than the courts of common law would upon the same
subject. The fact that the error might be corrected on appeal was
deemed to be irrelevant to the availability of a writ of
prohibition. In the court's view, the reason for prohibition in
such a case was "[not] that the Spiritual Court had not
jurisdiction to construe [the statute], but that the mischiefs of
misconstruction were to be prevented by prohibition." Id., at 368,
102 Eng. Rep., at 1111. n12
- - - - - - - - -Footnotes- - - - - - - - - -
n12 The court in Gould quoted from Blackstone, who described the
use of the writ of prohibition as follows:
"This writ may issue either to inferior courts of common law; as,
to the courts of the counties palatine or principality of Wales, if
they hold plea of land or other matters not lying within their
respective franchises; to the county-courts or courts baron, where
they attempt to hold plea of any matter of the value of forty
shillings: or it may be directed to the courts christian, the
university courts, the court of chivalry, or the court of
admiralty, where they concern themselves with any matter not within
their jurisdiction: as if the first should attempt to try the
validity of a custom pleaded, or the latter a contract made or to
be executed within this kingdom. Or, if, in handling of matters
clearly within their cognizance, they transgress the bounds
prescribed to them by the laws of England; as where they require
two witnesses to prove the payment of a legacy, a release of
tithes, or the like; in such cases also a prohibition will be
awarded. For, as the fact of signing a release, or of actual
payment, is not properly a spiritual question, but only allowed to
be decided in those courts, because incident or accessory to some
original question clearly within their
PAGE 12 466 U.S. 522, *534; 104 S. Ct.
1970, **1977; 1984 U.S. LEXIS
75, ***21; 80 L. Ed. 2d 565
jurisdiction; it ought therefore, where the two laws differ, to be
decided not according to the spiritual, but the temporal law; else
the same question might be determined different ways, according to
the court in which the suit is depending: an impropriety, which no
wise government can or ought to endure, and which is therefore a
ground of prohibition. And if either the judge or the party shall
proceed after such prohibition, an attachment may be had against
them, to punish them for the contempt, at the discretion of the
court that awarded it; and an action will lie against them, to
repair the party injured in damages." 3 W. Blackstone, Commentaries
*112-*113 (footnotes omitted).
- - - - - - - - -End Footnotes- - - - - - -[***22]
[*535] Although the King's Bench exercised direct review of
the inferior common-law courts, it also used the writ of
prohibition to control those courts. See, e. g., In re Hill, 10
Exch. 726 (1855) (prohibition issued to prevent judge from
proceeding in a case in which he, of his own accord, had amended a
claim to an amount within his jurisdiction). n13
- - - - - - - - - -Footnotes- - - - - - - - -
n13 See also Queen v. Adamson, 1 Q. B. D. 201 (1875) (mandamus
issued to require justices of the peace to hear applications for a
summons to answer a charge of conspiracy to do grievous harm, where
refusal had been based on distaste for the applicants' views);
Queen v. Marsham, [1892] 1 Q. B. 371 (1891) (mandamus issued to
require a magistrate to hear legal evidence).
- - - - - - - - -End Footnotes- - - - - - - - -
The practice has continued into modern times. In King v.
Emerson, [1913] 2 Ir. R. 377, for instance, the court granted a
writ of prohibition preventing a justice of the peace, acting in a
judicial capacity, from [***23] proceeding with a deposition,
because of a likelihood that a reasonable public might conclude
that the magistrate's statements indicated bias in favor of the
Crown. The court directed the magistrate to pay costs to the
complaining party, leaving him to settle with the Crown the matter
of indemnification.
The relationship between the King's Bench and its collateral and
inferior courts is not precisely paralleled in our system by the
relationship between the state and federal courts. [*536] To
the extent that we rely on the common-law practice in shaping our
own doctrine of judicial immunity, however, the control exercised
by the King's Bench through the prerogative writs is highly
relevant. It indicates that, at least in the view of the common
law, there was no inconsistency between a principle of immunity
[**1978] that protected judicial authority from "a wide, wasting,
and harassing persecution," Taaffe v. Downes, 13 Eng. Rep., at 18,
n. (a), and the availability of collateral injunctive relief in
exceptional cases. Nor, as indicated above, did the common law
deem it necessary to limit this collateral relief to situations
where no alternative [***24] avenue of review was available.
See Gould v. Gapper, supra.
It is true that the King's Bench was successful in insulating
its judges from collateral review. But that success had less to do
with the doctrine of judicial immunity than with the fact that only
the superior judges of the
PAGE 13 466 U.S. 522, *536; 104 S. Ct.
1970, **1978; 1984 U.S. LEXIS
75, ***24; 80 L. Ed. 2d 565
King's Bench, not the ecclesiastical courts or the inferior
common-law courts, had authority to issue the prerogative writs. n14
- - - - - - - -Footnotes- - - - - - - - - -
n14 Blackstone indicates that a writ of prohibition properly
issued "only out of the court of king's bench, being the king's
prerogative writ; but for the furtherance of justice, it may now
also be had in some cases out of the court of chancery, common
pleas, or exchequer; directed to the judge and parties, of a suit
in any inferior court, commanding them to cease from the
prosecution thereof." 3 W. Blackstone, Commentaries *112 (footnotes
omitted). The significant point is that the ecclesiastical and
inferior courts could not retaliate against the King's Bench by use
of the writ.
- - - - - - - -End Footnotes- - - - - - - - -
IV [***25]
Our own experience is fully consistent with the common law's
rejection of a rule of judicial immunity from prospective relief.
We never have had a rule of absolute judicial immunity from
prospective relief, and there is no evidence that the absence of
that immunity has had a chilling effect on judicial independence.
None of the seminal opinions on judicial immunity, either in
England or in this country, has involved [*537] immunity from
injunctive relief. n15 No Court of Appeals ever has concluded that
immunity bars injunctive relief against a judge. See n. 6, supra.
At least seven Circuits have indicated affirmatively that there is
no immunity bar to such relief, and in situations where in their
judgment an injunction against a judicial officer was necessary to
prevent irreparable injury to a petitioner's constitutional rights,
courts have granted that relief. n16
- - - - - - - - -Footnotes- - - - - - - - - -
n15 See, e. g., Floyd and Barker, 12 Co. Rep. 23, 77 Eng. Rep.
1305 (K. B. 1607) (criminal prosecution for conspiracy); Taaffe v.
Downes, reprinted in footnote in Calder v. Halket, 13 Eng. Rep. 12,
15, n. (a) (P. C. 1840) (damages for assault and false
imprisonment); Scott v. Stansfield, 3 L. R. Ex. 220 (1868) (damages
for slander); Randall v. Brigham, 7 Wall. 523 (1869) (damages for
removing an attorney from the bar); Bradley v. Fisher, 13 Wall. 335
(1872) (damages for improperly removing the plaintiff from the
rolls of court); Pierson v. Ray, 386 U.S. 547 (1967) (damages for
false conviction); Stump v. Sparkman, 435 U.S. 349 (1978) (damages
resulting from the judge's order that the plaintiff be sterilized).
[***26]
n16 See, e. g., United States v. McLeod, 385 F.2d 734 (CA5 1967)
(injunction to protect Negroes who attempted to register to vote
from harassing actions by state officials, including a judge);
Fernandez v. Trias Monge, 586 F.2d 848 (CA1 1978) (injunction
against unconstitutional pretrial detention procedure); WXYZ, Inc.
v. Hand, 658 F.2d 420 (CA6 1981) (injunction against enforcement of
a court's "gag" order, when the court had threatened violators with
contempt).
- - - - - - - -End Footnotes- - - - - - -
PAGE 14 466 U.S. 522, *537; 104 S. Ct.
1970, **1978; 1984 U.S. LEXIS
75, ***26; 80 L. Ed. 2d 565
For the most part, injunctive relief against a judge raises
concerns different from those addressed by the protection of judges
from damages awards. The limitations already imposed by the
requirements for obtaining equitable relief against any defendant --
a showing of an inadequate remedy at law and of a serious risk of
irreparable harm, see Beacon Theatres, Inc. v. Westover, 359 U.S.
500, 506-507 (1959) n17 -- severely curtail the risk that judges
will be harassed and their independence compromised by the threat
of having to [*538] defend [***27] themselves against suits by
[**1979] disgruntled litigants. n18 Similar limitations serve to
prevent harassment of judges through use of the writ of mandamus.
Because mandamus has "the unfortunate consequence of making the
judge a litigant, obliged to obtain personal counsel or to leave
his defense to one of the litigants before him," the Court has
stressed that it should be "reserved for really extraordinary
causes." Ex parte Fahey, 332 U.S. 258, 260 (1947). Occasionally,
however, there are "really extraordinary causes" and, in such
cases, there has been no suggestion that judicial immunity prevents
the supervising court from issuing the writ. n19
- - - - - - - -Footnotes- - - - - - - - - -
n17 When the question is whether a federal court should enjoin
a pending state-court proceeding, "even irreparable injury is
insufficient unless it is 'both great and immediate.'" Younger v.
Harris, 401 U.S. 37, 46 (1971), quoting Fenner v. Boykin, 271 U.S.
240, 243-244 (1926). See discussion at n. 19, infra.
n18 Article III also imposes limitations on the availability of
injunctive relief against a judge. See In re Justices of Supreme
Court of Puerto Rico, 695 F.2d 17, 21 (CA1 1982) (no case or
controversy between a judge who adjudicates claims under a statute
and a litigant who attacks the constitutionality of the statute).
See also Los Angeles v. Lyons, 461 U.S. 95 (1983) (claims for
injunctive relief against unconstitutional state practice too
speculative). [***28]
n19 In Hall v. West, 335 F.2d 481 (CA5 1964), a petition for
writ of mandamus was filed by Negro plaintiffs in a civil rights
case that had been pending before the District Court more than 11
years. Although two other District Courts, affirmed by this Court,
had declared unconstitutional the Louisiana segregated school
system and the state statute passed to allow the school board to
close public schools to avoid desegregation, the board had made
clear that it intended to take no action to change the segregated
system without a further order from the District Court. The court,
however, refused to act. The Court of Appeals therefore issued a
writ of mandamus, compelling the District Court to order the
defendants to submit a plan for the commencement of desegregation
of the schools under their control. See also In re Attorney
General of the United States, 596 F.2d 58 (CA2) (writ of mandamus
granted to vacate District Court's contempt order against the
Attorney General), cert. denied, 444 U.S. 903 (1979).
Whether or not the judge is required to appear personally in the
proceeding, see the dissent, post, at 552, he remains a party to
the suit and risks contempt for violating the writ. See In re
Smith, 2 Cal. App. 158, 83 P. 167 (1905); State v. Williams, 7 Rob.
252 (La. 1844); People ex rel. Bristol v. Pearson, 4 Ill. 270
(1841). And although courts properly are reluctant to impose costs
against a judge for actions taken in good-faith performance of his
judicial responsibilities, a court, in its discretion, may award
costs against a respondent judge. See State ex rel. Clement v.
Grzezinski, 158 Ohio St. 22,
PAGE 15 466 U.S. 522, *538; 104 S. Ct.
1970, **1979; 1984 U.S. LEXIS
75, ***28; 80 L. Ed. 2d 565
106 N. E. 2d 779 (1952).
- - - -End Footnotes- - - - - -[***29]
[*539] The other concern raised by collateral injunctive
relief against a judge, particularly when that injunctive relief is
available through @ 1983, relates to the proper functioning of
federal-state relations. Federal judges, it is urged, should not
sit in constant supervision of the actions of state judicial
officers, whatever the scope of authority under @ 1983 for issuing
an injunction against a judge.
The answer to this concern is that it is not one primarily of
judicial independence, properly addressed by a doctrine of judicial
immunity. The intrusion into the state process would result
whether the action enjoined were that of a state judge or of
another state official. The concern, therefore, has been addressed
as a matter of comity and federalism, independent of principles of
judicial immunity. n20 We reaffirm the validity of those principles
and the need for restraint by federal courts called on to enjoin
the actions of state judicial officers. We simply see no need to
reinterpret the principles now as stemming from the doctrine of
judicial immunity.
- - - - - - - - - -Footnotes- - - - - - - - -
n20 See O'Shea v. Littleton, 414 U.S. 488 (1974) (rejecting, on
Art. III and Younger v. Harris grounds, an injunction issued
against state judicial officials, although the Court of Appeals,
see Littleton v. Berbling, 468 F.2d 389 (CA7 1972), had devoted the
bulk of its opinion to judicial immunity). A state judge was among
the defendants in Mitchum v. Foster, 407 U.S. 225 (1972), where the
Court recognized @ 1983 as an explicit exception to the anti-injunction statute, but reaffirmed "the principles of equity,
comity, and federalism that must restrain a federal court when
asked to enjoin a state court proceeding." Id., at 243.
- - - - - - - - -End Footnotes- - - - - - - -[***30]
If the Court were to employ principles of judicial immunity to
enhance further the limitations already imposed by principles of
comity and federalism on the availability of injunctive relief
against a state judge, it would foreclose relief in situations
where, [**1980] in the opinion of a federal judge, that relief
is constitutionally required and necessary to prevent irreparable
harm. Absent some basis for determining that such a result is
compelled, either by the principles of judicial immunity, derived
from the common law and not explicitly abrogated by Congress, or by
Congress' own intent to limit [*540] the relief available under
@ 1983, we are unwilling to impose those limits ourselves on the
remedy Congress provided.
As illustrated above, there is little support in the common law
for a rule of judicial immunity that prevents injunctive relief
against a judge. There is even less support for a conclusion that
Congress intended to limit the injunctive relief available under @
1983 in a way that would prevent federal injunctive relief against
a state judge. In Pierson v. Ray, 386 U.S. 547 (1967), the Court
found no indication of affirmative [***31] congressional
PAGE 16 466 U.S. 522, *540; 104 S. Ct.
1970, **1980; 1984 U.S. LEXIS
75, ***31; 80 L. Ed. 2d 565
intent to insulate judges from the reach of the remedy Congress
provided in @ 1983. The Court simply declined to impute to
Congress the intent to abrogate common-law principles of judicial
immunity. Absent the presumption of immunity on which Pierson was
based, nothing in the legislative history of @ 1983 or in this
Court's subsequent interpretations of that statute supports a
conclusion that Congress intended to insulate judges from
prospective collateral injunctive relief.
Congress enacted @ 1983 and its predecessor, @ 2 of the Civil
Rights Act of 1866, 14 Stat. 27, to provide an independent avenue
for protection of federal constitutional rights. The remedy was
considered necessary because "state courts were being used to
harass and injure individuals, either because the state courts were
powerless to stop deprivations or were in league with those who
were bent upon abrogation of federally protected rights." Mitchum
v. Foster, 407 U.S. 225, 240 (1972). See also Pierson v. Ray, 386
U.S., at 558-564 (dissenting opinion) (every Member of Congress who
spoke to the issue assumed that judges would be liable under
[***32] @ 1983) .
Subsequent interpretations of the Civil Rights Acts by this
Court acknowledge Congress' intent to reach unconstitutional
actions by all state actors, including judges. In Ex parte
Virginia, 100 U.S. 339 (1880), @ 4 of the Civil Rights Act of 1875,
18 Stat. 336, was employed to authorize a criminal indictment
against a judge for excluding persons from [*541] jury service
on account of their race. The Court reasoned that the Fourteenth
Amendment prohibits a State from denying any person within its
jurisdiction the equal protection of the laws. Since a State acts
only by its legislative, executive, or judicial authorities, the
constitutional provision must be addressed to those authorities,
including the State's judges. Section 4 was an exercise of
Congress' authority to enforce the provisions of the Fourteenth
Amendment and, like the Amendment, reached unconstitutional state
judicial action. n21
- - - - - - - -Footnotes- - - - - - - - - - -
n21 The Court assumed that the judge was performing a
ministerial rather than a judicial function. It went on to
conclude, however, that even if the judge had been performing a
judicial function, he would be liable under the statute. 100 U.S.,
at 348-349.
- - - - - - -End Footnotes- - - - - - -[***33]
The interpretation in Ex parte Virginia of Congress' intent in
enacting the Civil Rights Acts has not lost its force with the
passage of time. In Mitchum v. Foster, supra, the Court found @
1983 to be an explicit exception to the anti-injunction statute,
citing Ex parte Virginia for the proposition that the "very purpose
of @ 1983 was to interpose the federal courts between the States
and the people, as guardians of the people's federal rights -- to
protect the people from unconstitutional action under color of
state law, 'whether that action be executive, legislative, or
judicial.'" 407 U.S., at 242.
Much has changed since the Civil Rights Acts were passed. It no
longer is proper to assume that a state court will not act to
prevent a federal constitutional deprivation or that a state judge
will be implicated in [**1981] that deprivation. We remain
steadfast in our conclusion,
PAGE 17 466 U.S. 522, *541; 104 S. Ct.
1970, **1981; 1984 U.S. LEXIS
75, ***33; 80 L. Ed. 2d 565
nevertheless, that Congress intended @ 1983 to be an independent
protection for federal rights and find nothing to suggest that
Congress intended to expand the common-law doctrine of judicial
immunity to insulate state judges completely from federal [***34]
collateral review.
We conclude that judicial immunity is not a bar to prospective
injunctive relief against a judicial officer acting in her [*542]
judicial capacity. In so concluding, we express no opinion as to
the propriety of the injunctive relief awarded in this case.
Petitioner did not appeal the award of injunctive relief against
her. The Court of Appeals therefore had no opportunity to consider
whether respondents had an adequate remedy at law, rendering
equitable relief inappropriate, n22 or [*543] whether the order
itself should have been more narrowly tailored. On the record
before us and without the benefit of the Court of Appeals'
assessment, we are unwilling to speculate about these
possibilities. We proceed, therefore, to the question whether
judicial immunity bars an award of attorney's fees, under @ 1988,
to one who succeeds in obtaining injunctive relief against a
judicial officer.
- - - - - - - - -Footnotes- - - - - - - - - -
n22 O'Shea v. Littleton, 414 U.S., at 502. Virginia provides,
for instance, for appellate review of orders denying bail or
requiring excessive bail, see Va. Code @ 19.2-124 (1983), and for
state habeas corpus relief from unlawful detention, see Va. Code @
8.01-654 (Supp. 1983). On the other hand, the nature and short
duration of the pretrial detention imposed by petitioner was such
that it may have been impossible for respondents to avail
themselves of these remedies. Cf. Gerstein v. Pugh, 420 U.S. 103,
110, n. 11 (1975).
The fact that "[there] has been no showing to this effect,"
post, at 554, n. 13, is hardly a sufficient basis for rejecting the
relief awarded here or for questioning the effectiveness of the
limitations on equitable relief in curtailing the risk of
harassment from suits for such relief. What the dissenters ignore
is that petitioner did not challenge the relief awarded against
her. "There has been no showing" because respondents never have
been called on to make such a showing.
For similar reasons, there is no merit to the dissenters'
insistence that the scope of the injunctive order entered here
illustrates the threat to judicial independence inherent in
allowing injunctive relief against judges. See post, at 554-555.
In the first place, the dissenters' interpretation of the District
Court's order is by no means compelled by the language of that
order. The order merely declared the constitutional limits on
pretrial detention for dangerousness. There was no suggestion
before the District Court that petitioner had misapplied the
provision for pretrial detention for dangerousness. Accordingly,
petitioner was enjoined only from the "practice and course of
conduct in Culpeper County, Virginia, under which persons are
confined prior to trial on offenses for which no jail time is
authorized solely because they cannot meet bond." App. to Pet. for
Cert. 11. No judgment calls are required in following the court's
order that petitioner no longer impose bond for offenses for which
no incarceration is authorized by statute. More important, to the
extent that the scope of the District Court's order may be unclear,
that issue should have been raised by appeal from the injunctive
relief, where, had petitioner demonstrated that the injunctive
relief ordered against her was too intrusive, the Court of Appeals
no doubt would have
PAGE 18 466 U.S. 522, *543; 104 S. Ct.
1970, **1981; 1984 U.S. LEXIS
75, ***34; 80 L. Ed. 2d 565
ordered the District Court to tailor its relief more narrowly. See
O'Shea v. Littleton, supra.
- - - - - - -End Footnotes- - - - - - - -[***35]
V
Petitioner insists that judicial immunity bars a fee award
because attorney's fees are the functional equivalent of monetary
damages and monetary damages indisputably are prohibited by
judicial immunity. She reasons that the chilling effect of a
damages award is no less chilling when the award is denominated
attorney's fees.
There is, perhaps, some logic to petitioner's reasoning.
The weakness in it is that it is for Congress, not this Court,
to determine whether and to what extent to abrogate the judiciary's
common-law immunity. See Pierson v. Ray, 386 U.S., at 554.
Congress has made clear in @ 1988 its intent that attorney's fees
be available in any action to enforce a provision of @ 1983. See
also Hutto v. Finney, 437 U.S. 678, 694 (1978). The legislative
history of the statute confirms Congress' intent that an attorney's
fee award be available [**1982] even when damages would be
barred or limited by "immunity doctrines and special defenses,
available only to public officials." H. R. Rep. No. 94-1558, p. 9
(1976). n23 See also [*544] Supreme Court of Virginia v.
Consumers Union of United States, Inc., 446 U.S., at 738-739
[***36] ("The House Committee Report on [@ 1988] indicates that
Congress intended to permit attorney's fees awards in cases in
which prospective relief was properly awarded against defendants
who would be immune from damages awards").
- - - - - - - - -Footnotes- - - - - - - - -
n23 As further indication of Congress' intent that @ 1988 apply
to judicial officers, the House Report contains a citation to
Pierson v. Ray, 386 U.S. 547 (1967). Petitioner suggests that the
citation to Pierson refers to another aspect of the decision,
regarding qualified immunities of officials in the Executive
Branch. We see no need to adopt such a strained interpretation.
The House Report clearly referred to public officials against whom
damages were precluded, as well as those against whom damages were
limited. Of the three cases cited by the House Report, only
Pierson involved complete preclusion of a damages award.
- - - - - - -End Footnotes- - - - - - - - -
Congress' intent could hardly be more plain. Judicial immunity
is no bar to the award of attorney's fees under 42 U. S. C. @ 1988.
[***37]
The judgment of the Court of Appeals, allowing the award of
attorney's fees against petitioner, is therefore affirmed.
It is so ordered.
DISSENT BY: POWELL
PAGE 19 466 U.S. 522, *544; 104 S. Ct.
1970, **1982; 1984 U.S. LEXIS
75, ***37; 80 L. Ed. 2d 565
DISSENT: JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE
REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
The Court today reaffirms the rule that judges are immune from
suits for damages, but holds that they may be sued for injunctive
and declaratory relief and held personally liable for money
judgments in the form of costs and attorney's fees merely on the
basis of erroneous judicial decisions. The basis for the Court's
distinction finds no support in common law and in effect
eviscerates the doctrine of judicial immunity that the common law
so long has accepted as absolute.
The Court recognizes that the established principle of judicial
immunity serves as the bulwark against threats to "independent
judicial decisionmaking," ante, at 531. Yet, at the same time it
concludes that judicial immunity does not bar suits for injunctive
or declaratory relief with the attendant claims for costs and
attorney's fees. The Court reasons that "[for] the most part,
injunctive relief against a judge raises concerns different from
those [***38] addressed by the protection of judges from damages
awards." Ante, at 537. This case illustrates the unsoundness of
that reasoning. The Court affirms a $ 7,691.09 money judgment
awarded against a state Magistrate on the determination that she
made erroneous judicial decisions with respect to bail and pretrial
detentions. Such a [*545] judgment poses the same threat to
independent judicial decisionmaking whether it be labeled "damages"
of $ 7,691.09 or "attorney's fees" in that amount. Moreover, as
was held a century and a half ago, an "action before one Judge for
what is done by another . . . [is a] case . . . against the
independence of the Judges." Taaffe v. Downes, reprinted in
footnote in Calder v. Halket, 13 Eng. Rep. 12, 18, n. (a) (P. C.
1840). The burdens of having to defend such a suit are identical
in character and degree, whether the suit be for damages or
prospective relief. The holding of the Court today subordinates
realities to labels. The rationale of the common-law immunity
cases refutes the distinction drawn by the Court.
I
Since 1869, this Court consistently has held that judges are
absolutely immune from civil [***39] suits for damages. See,
e. g., Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386
U.S. 547 (1967); Bradley v. Fisher, 13 Wall. 335 (1872); Randall v.
Brigham, 7 Wall. 523 (1869). We have had no occasion, however, to
determine whether judicial immunity bars a [**1983] @ 1983 suit
for prospective relief. See Supreme Court of Virginia v. Consumers
Union of United States, Inc., 446 U.S. 719, 735 (1980). n1 It is
clear that Congress did not limit the [*546] scope of common-law immunities in either @ 1983 n2 or @ 1988. n3 We, therefore,
have looked to the common law to determine when absolute immunity
should be available. A review of the common law reveals nothing
that suggests -- much less requires -- the distinction the Court
draws today between suits for prospective relief (with the
attendant liability for costs and attorney's fees) and suits for
damages.
- - - - - -Footnotes- - - - - - - -
n1 Respondents' argument that this Court has "at least implied
that judicial immunity did not bar [declaratory or injunctive]
relief" misreads the precedents. Brief for Respondents 12.
Respondents rely on the cases cited in note 14 of the Court's
opinion in Consumers Union, 446 U.S., at 735. None of
PAGE 20 466 U.S. 522, *546; 104 S. Ct.
1970, **1983; 1984 U.S. LEXIS
75, ***39; 80 L. Ed. 2d 565
those cases addressed the issue of judicial immunity from
prospective relief. In Mitchum v. Foster, 407 U.S. 225 (1972),
appellant filed a @ 1983 claim against state judicial and law
enforcement officials seeking to enjoin state-court proceedings
under an allegedly unconstitutional state law. The only issue
considered by this Court was whether @ 1983 was an authorized
exception to the anti-injunction statute that allowed federal
courts to enjoin state-court proceedings. In Boyle v. Landry, 401
U.S. 77 (1971), appellees filed a @ 1983 claim against state
judicial and law enforcement officials seeking to enjoin the
enforcement of state statutes on the ground that such enforcement
was used to harass and deter appellees from exercising their
constitutional rights. This Court found that appellees had not
been threatened with prosecution and held that the lower court had
lacked Art. III jurisdiction. The suit against judicial officials
in O'Shea v. Littleton, 414 U.S. 488 (1974), was dismissed on the
same ground. Although the lower court in Gerstein v. Pugh, 420
U.S. 103 (1975), had ordered injunctive relief against judicial
officers, only the state prosecutor sought review. Thus, the Court
did not consider the propriety of the relief awarded against the
judicial officers. [***40]
n2 See Pierson v. Ray, 386 U.S. 547, 554-555 (1967).
n3 In Consumers Union, supra, at 738, the Court observed that
"[there] is no . . . indication in the legislative history of the
Act to suggest that Congress intended to permit an award of
attorney's fees to be premised on acts for which defendants would
enjoy absolute legislative immunity." Similarly, there is no
indication in the legislative history of the Act to suggest that
Congress intended to diminish the scope of judicial immunity.
- - - - -End Footnotes- - - - - - - - -
The doctrine of judicial immunity is one of the earliest
products of the English common law. n4 It was established to
protect the finality of judgments from continual collateral attack
in courts of competing jurisdiction n5 and to protect [*547]
judicial decisionmaking from intimidation and outside interference.
n6 Gradually, the protection of [**1984] judicial independence
became its primary objective. The specific source of intimidation
articulated by the English common-law cases was the threat of
vexatious litigation should judges be required [***41] to
defend their judicial acts in collateral civil proceedings. In
Taaffe v. Downes, supra, at 18, n. (a), the justices observed: "If
you once break down the barrier . . . and subject [judges] to an
action, you let in upon the judicial authority a wide, wasting, and
harassing persecution. . . ." The common-law cases made no
reference to the effect on judicial independence of particular
remedies such as an award of damages.
- - - - -Footnotes- - - - - - - - - - -
n4 The doctrine was recognized as early as the reign of Edward
III (1327-1377). See 6 W. Holdsworth, A History of English Law
234-235 (2d ed. 1937).
n5 During the early medieval period, there was no such thing as
an appeal from court to court. Judges were not immune from suits
attacking their judicial acts, and the common procedure for
challenging a judicial ruling was to file a complaint of "false
judgment" against the judge. 1 W. Holdsworth, A History of English
Law 213-214 (7th ed. 1956); 6 Holdsworth, at 235. At this time,
The
PAGE 21 466 U.S. 522, *547; 104 S. Ct.
1970, **1984; 1984 U.S. LEXIS
75, ***41; 80 L. Ed. 2d 565
King's Bench was the central common-law court, and it vied for
jurisdiction with the local feudal courts and the ecclesiastical
courts. To protect the finality and authoritativeness of its
decisions from collateral attack in these competing courts, the
King's Bench borrowed the idea of appellate procedure from the
ecclesiastical courts. R. Pound, Appellate Procedure in Civil
Cases 25-26 (1941). To ensure this procedure, it was necessary to
immunize the judicial acts of common-law judges from collateral
attack -- hence the doctrine of judicial immunity. [***42]
n6 Because the judge rather than the prevailing party to the
original suit became the named defendant in a complaint for false
imprisonment, it was the judge who suffered the burdens of
litigation and the consequences of any adverse judgment. The
burdens of litigation could be substantial. In the early days, the
defendant judge was required, at his own expense, to prepare a
record setting forth the proceedings upon which his challenged
judicial decisions were made and to send four suitors of the court
to bring the record before the King's Bench. Id., at 26. If the
judgment was found to be false, the judge was amerced or fined. 6
Holdsworth, at 235. The common law recognized that the threat of
personal litigation would jeopardize the independence of judicial
decisionmaking: judges, to avoid being called before a hostile
tribunal to account for their judicial acts, could be deterred by
personal considerations from judging dispassionately the merits of
the cases before them. See Taaffe v. Downes, 13 Eng. Rep., at 23,
n. (a) ("A Judge . . . ought to be uninfluenced by any personal
consideration whatsoever operating upon his mind, when he is
hearing a discussion concerning the rights of contending parties;
otherwise, instead of hearing them abstractedly, a considerable
portion of his attention must be devolved to himself").
- - - -End Footnotes- - - - - - -[***43]
The early opinions of this Court echo the principal
justification for the immunity doctrine articulated at English
common law. In Bradley v. Fisher, supra, the emphasis was on the
[*548] burden of harassing and vexatious litigation. The Court
observed:
"If . . . a judge could be compelled to answer in a civil action
for his judicial acts, . . . he would be subjected for his
protection to the necessity of preserving a complete record of all
the evidence produced before him in every litigated case, and of
the authorities cited and arguments presented, in order that he
might be able to show to the judge before whom he might be summoned
by the losing party . . . that he had decided as he did with
judicial integrity; and the second judge would be subjected to a
similar burden, as he in his turn might also be held amenable by
the losing party." Id., at 349.
Addressing the need for judicial independence, the Court therefore
concluded:
"'The public are deeply interested in [the] rule [of judicial
immunity], which . . . was established in order to secure the
independence of the judges, and prevent them being harassed by
vexatious actions.'" [***44] Ibid. (quoting Fray v. Blackburn,
3 B. & S. 576, 578, 122 Eng. Rep. 217 (1863)).
The justification for the immunity doctrine emphasized in Bradley
has been repeated in subsequent decisions by this Court. See, e.
g., Pierson v. Ray,
PAGE 22 466 U.S. 522, *548; 104 S. Ct.
1970, **1984; 1984 U.S. LEXIS
75, ***44; 80 L. Ed. 2d 565
386 U.S., at 554; Butz v. Economou, 438 U.S. 478, 512 (1978). In
these cases as well, the burdens of litigation, rather than the
threat of pecuniary loss, are cited as posing a threat to judicial
independence and occasioning the need for immunity. These burdens
apply equally to all suits against judges for allegedly erroneous
or malicious conduct. It is immaterial whether the relief sought
is an injunction as in this case, or damages as in Pierson v. Ray
or Stump v. Sparkman. Indeed, the Court today, largely ignoring
that it was the burden of litigation that motivated the common-law
immunity, makes no argument to the contrary. Unless the rationale
of Bradley and [*549] the common-law cases is rejected,
judicial immunity from suits against judges for injunctive relief
must be coextensive with immunity from suits for damages.
II
A
The [***45] Court nevertheless argues that the common law of
England can be viewed as supporting the absence of immunity where
the suit is for injunctive relief. The Court concedes, as it must,
that suits for injunctive relief against a judge could not be
maintained either at English common law or in the English courts of
equity. Ante, at 529. Injunctive relief from inequitable
proceedings at common law was available in equity "to stay [a
common-law] trial; or, after verdict, to stay judgment; or, after
judgment, to stay execution." J. Story, Equity Jurisprudence para.
874, p. 72 (11th ed. 1873). But such relief was available only
[**1985] against the parties to the common-law proceedings and
not against the judge. Id., para. 875, at 72. The suit for
injunctive relief at issue here is precisely the type of suit that
the Court concedes could not have been maintained either at common
law or in equity. The Court, however, reasons that the writs of
prohibition and mandamus present a "common-law parallel to the @
1983 injunction at issue here." Ante, at 529.
The prerogative writs of mandamus and prohibition are simply not
analogous to suits for injunctive relief from [***46] the
judgments of common-law courts, and the availability of these writs
against judicial officials has nothing to do with judicial
immunity. It has long been recognized at common law that judicial
immunity protects only those acts committed within the proper scope
of a judge's jurisdiction, but provides no protection for acts
committed in excess of jurisdiction. n7 [*550] Because writs of
prohibition and mandamus were intended only to control the proper
exercise of jurisdiction, n8 they posed no threat to judicial
independence and implicated none of the policies of judicial
immunity. Thus, the judges of England's inferior courts were
subject to suit for writs of mandamus and prohibition, but judicial
immunity barred all suits attacking judicial decisions made within
the proper scope of their jurisdiction. n9 There is no allegation
in this case that petitioner exceeded her jurisdiction. The suit
for injunctive relief is based solely on an erroneous construction
and application of law. It is precisely this kind of litigation
that the common-law doctrine of judicial immunity was intended to
prohibit.
- - - - - - - -Footnotes- - - - - - - - -
n7 See 6 Holdsworth, supra n. 4, at 236-237:
"[In] The Case of the Marshalsea, 'a difference was taken when a
court has
PAGE 23 466 U.S. 522, *550; 104 S. Ct.
1970, **1985; 1984 U.S. LEXIS
75, ***46; 80 L. Ed. 2d 565
jurisdiction of the cause, and proceeds . . . erroneously, there .
. . no action lies [against a judge]. . . . But when the court has
not jurisdiction of the cause, then the whole proceeding is coram
non judice, and actions [against the judge] will lie'" (quoting
Case of the Marshalsea, 10 Co. Rep. 68b, 76a, 77 Eng. Rep. 1027,
1038 (K. B. 1613)).
See also Bradley v. Fisher, 13 Wall. 335, 351-353 (1872). [***47]
n8 See 1 Holdsworth, supra n. 5, at 228-229.
n9 Holdsworth observed:
"'[It] is agreed that the judges in the king's superior courts are
not liable to answer personally for their errors in judgment. . .
. [In] courts of special and limited jurisdiction . . . a
distinction must be made, but while acting within the line of their
authority they are protected as to errors in judgment; otherwise
they are not protected.'" 6 Holdsworth, supra, at 239, n. 4
(quoting Miller v. Seare, 2 Bl. W. 1141, 1145, 96 Eng. Rep. 673,
674-675 (K. B. 1777)).
- - - - - -End Footnotes- - - - - - - -
B
The Court's observation that prerogative writs may have been
used at English common law to correct errors of judgment rather
than excesses of jurisdiction is irrelevant to the case at bar. We
"rely on the common-law practice in shaping our own doctrine of
judicial immunity," ante, at 536, only to the extent that the
common-law practices consulted are consistent with our own
judicial systems. The Court's reliance on English common-law
practice ignores this constraint. It was the rivalry between the
English temporal [***48] and spiritual courts that induced the
King's Bench to adopt the myth that [*551] misapplication of
substantive common law affects the court's jurisdiction. n10 As the
Court points out, the relationship between the King's Bench and
[**1986] its rival ecclesiastical courts finds no parallel in our
judicial system. Ante, at 535. There is no indication that the
courts of this country ever resorted to the fictional use of
prerogative writs found at English common law. To the contrary,
our courts expressly have rejected the fiction and have limited the
use of mandamus and prohibition to jurisdictional issues or to
cases where the court has a clear duty to act. See Roche v.
Evaporated Milk Assn., 319 U.S. 21, 26 (1943). See also Bankers
Life & Casualty Co. v. Holland, 346 U.S. 379, 382-383 (1953); Will
v. United States, 389 U.S. 90, 103-104 (1967).
- - - - - - - - -Footnotes- - - - - - - - -
n10 For example, the Court cites Gordon, The Observance of Law
as a Condition of Jurisdiction, 47 L. Q. Rev. 386, 393 (1931),
which provides:
"The idea that to misapply or fail to apply substantive . . .
law affects a judicial tribunal's jurisdiction, even when it acts
within its province, is now generally recognized as wrong. That
there was at one time doubt upon the point was due to the former
hostility of the King's Bench toward . . . the ecclesiastical
Courts. Although the King's Bench admitted it could not redress
mere error in such Courts, it could, of course, restrain their
excesses of jurisdiction through the writ of prohibition. And
under the pretext that it
PAGE 24 466 U.S. 522, *551; 104 S. Ct.
1970, **1986; 1984 U.S. LEXIS
75, ***48; 80 L. Ed. 2d 565
was merely keeping them within their jurisdiction, it issued
prohibitions to these Courts whenever they applied or construed any
statute in a way the King's Bench did not approve of." (Footnotes
omitted.)
See also 3 W. Blackstone, Commentaries *113-*115; Dobbs, The
Decline of Jurisdiction By Consent, 40 N. C. L. Rev. 49, 60-61
(1961).
- - - - - -End Footnotes- - - - - - - - - - -[***49]
Nor is there any indication that the expansive use of
prerogative writs in England modified the doctrine of judicial
immunity in this country. n11 Indeed, the sparing use of the
[*552] writs of prohibition and mandamus in American
jurisprudence has been motivated in large part by the concern for
judicial independence. Cases counseling restraint in the use of
prerogative writs repeatedly have observed that such writs have
"the unfortunate consequence" of "[placing] trial judges in the
anomalous position of being litigants without counsel other than
uncompensated volunteers." La Buy v. Howes Leather Co., 352 U.S.
249, 258 (1957). See also Kerr v. United States District Court, 426
U.S. 394, 402 (1976); Bankers Life & Casualty Co., supra, at
384-385; Ex parte Fahey, 332 U.S. 258, 259-260 (1947). In response
to this concern, the Federal Rules of Appellate Procedure have
provided that the respondent judge in a proceeding for mandamus or
prohibition may elect not to appear in the proceeding without
conceding the issues raised in the petition. Fed. Rule App. Proc.
21(b). n12 Finally, courts consistently [***50] have held that
concerns for judicial independence require that any award of costs
to a prevailing party in an action for mandamus or prohibition be
made only against the party at interest and not against the judge.
The United States Court of Appeals for the First Circuit explained:
"It would be contrary to the fundamental rules protecting the
freedom of judicial action to tax costs against a judge of any one
of the constitutional courts of the United States by reason of any
failure to apprehend the [*553] law correctly." In re Haight &
Freese Co., 164 F. 688, 690 (1908).
Accord, Cotler v. Inter-County Orthopaedic Assn., 530 F.2d 536, 538
(CA3 1976).
- - - - - - - -Footnotes- - - - - - - - -
n11 As early as the decision in Bradley v Fisher, this Court
drew a clear distinction between erroneous judicial acts committed
within a judge's jurisdiction, for which there was absolute
immunity, and acts committed in excess of jurisdiction, for which
there was none. 13 Wall., at 351-353. This distinction, coupled
with the principle that writs of mandamus and prohibition could
issue only to correct clear jurisdictional errors, hardly suggests
that the easy availability of prerogative writs against England's
ecclesiastical courts limited the scope of judicial immunity in
this country. [***51]
n12 Rule 21(b) provides in relevant part:
"If the judge or judges named respondents do not desire to appear
in the proceeding, they may so advise the clerk and all parties by
letter, but the
PAGE 25 466 U.S. 522, *553; 104 S. Ct.
1970, **1986; 1984 U.S. LEXIS
75, ***51; 80 L. Ed. 2d 565
petition shall not thereby be taken as admitted."
Indeed, the Court of Appeals for the District of Columbia Circuit
has not even required that the judge be joined as a party. In
United States v. King, 157 U. S. App. D. C. 179, 183, 482 F.2d 768,
772 (1973), the court reasoned: "In the federal courts, when the
purpose of mandamus is to secure a ruling on the intrinsic merits
of a judicial act, the judge need not -- and desirably should not -- be named as an active party, but at most only as a nominal party
with no real interest in the outcome."
- - - - - - -End Footnotes- - - - - - - - - - -
In sum, the perceived analogy to the use of prerogative writs at
English common law simply does not withstand analysis. As shown
above, the analogy rests on a peculiar practice at English common
law that was occasioned by the unique relationship between the
King's Bench and England's ecclesiastical courts. That
relationship finds [***52] no parallel in this country. [**1987]
Moreover, our courts, and the Federal Rules of Appellate
Procedure, have sought to limit the use of mandamus and prohibition
for the very purpose of protecting judicial immunity. It is
extraordinary, therefore, that the Court today should rely on the
use of prerogative writs in England to justify exposing judicial
officials in this country to harassing litigation and to subject
them to personal liability for money judgments in the form of costs
and attorney's fees.
III
The Court suggests that the availability of injunctive relief
under @ 1983 poses no serious "risk that judges will be harassed
and their independence compromised by the threat of having to defend
themselves against suits by disgruntled litigants." Ante, at 537-538.
The reasons advanced for this optimism are that equitable relief will be
unavailable unless the plaintiff can show "an inadequate remedy at
law and . . . a serious risk of irreparable harm." Ibid. Again,
this suit refutes the Court's argument. Adequate remedies were
expressly available to each of the respondents under state law. n13
[*554] Nor was there any showing in this case of irreparable
[***53] harm in the absence of injunctive relief. Nevertheless,
petitioner was forced to bear the burdens of extended litigation,
making clear the need for absolute judicial immunity. n14
- - - - - - - - -Footnotes- - - - - - - - - - -
n13 The Court says that "it may have been impossible for
respondents to avail themselves" of other remedies provided by
Virginia law. Ante, at 542, n. 22. Virginia law, however, provides
two specific remedies for alleged unlawful detention. Virginia
Code @ 8.01-654 (Supp. 1983) provides that a "writ of habeas corpus
. . . shall be granted forthwith by any circuit court" to any
person who shows there is probable cause to believe he is being
unlawfully detained (emphasis added). Moreover, Virginia Code @
19.2-124 (1983) provides a specific procedure for appealing
unreasonable bail determinations "successively to the next higher
court . . . up to and including the Supreme Court of Virginia." The
Court suggests that in view of the short duration of pretrial
detention here, these remedies may not have been available. There
has been no showing to this effect. In any event, Stump v.
Sparkman, 435 U.S. 349 (1978),
PAGE 26 466 U.S. 522, *554; 104 S. Ct.
1970, **1987;
1984 U.S. LEXIS 75, ***53; 80 L. Ed. 2d 565
indicates that judicial immunity does not depend upon the
availability of other remedies. [***54]
n14 Responding to this dissent, the Court states that there has
been no showing of unavailability of alternative remedies because
petitioner never challenged the injunctive relief awarded. Ante,
at 542, n. 22. The point, however, is that this suit for
injunctive relief was allowed to proceed against a judicial
official without a showing, or finding by the District Court, that
alternative remedies were unavailable, or that there would be
irreparable harm.
- - - - - -End Footnotes- - - - - - - - - -
As discussed, both the English common-law cases and the
decisions of this Court identify the burdens of harassing
litigation, rather than the threat of pecuniary loss, as
threatening judicial independence. In suits for injunctive relief,
just as in suits for damages, the likely scenario was well stated
by one of the justices in Taaffe v. Downes:
"[Without the doctrine of judicial immunity, judges] become
amenable to every other species of correction by a Court. . . .
One hour at the bar -- the next at the bench, of the same or some
other Court. They would have a busy and harassing time, getting
from one station to the other [***55] -- from the Judge to the
accused -- from the corrector to the corrected." 13 Eng. Rep., at
20, n. (a).
The ever-present threat of burdensome litigation, made realistic by
today's decision, may well influence judicial determinations,
particularly in close cases where the decision is likely to be
unpopular.
[*555] Suits for injunctive relief may pose even greater
threats to judicial independence if they are successful and an
injunction is ordered. The specter of contempt proceedings for
alleged violations of injunctive orders is likely to inhibit
unbiased judicial decisionmaking as much as the threat of liability
for damages. Again, this suit is a case in point. The injunctive
order entered here was of unlimited duration and enjoined
petitioner from authorizing the pretrial detention of any person
charged with a certain class of misdemeanor, unless that person was
"lawfully deemed likely to be a danger to himself or to others,"
and "only so long as such danger persists." [**1988] App. 22.
Whether a particular defendant is "likely to be a danger to himself
or to others" and how "long [that danger will] last" are questions
normally and necessarily left [***56] to the discretion of the
presiding judge. The threat of contempt -- with the possibility of
a fine or even imprisonment --could well deter even the most
courageous judge from exercising this discretion independently and
free from intimidation. n15
- - - - - - - -Footnotes- - - - - - - - -
n15 The Court states that "[no] judgment calls are required in
following the court's [injunctive] order that petitioner no longer
impose bond for offenses for which no incarceration is authorized
by statute." Ante, at 542, n. 22. This statement is inaccurate.
The Virginia statute (now repealed) under which respondents' bail
was set permitted jail time for nonincarcerable offenses if
PAGE 27 466 U.S. 522, *555; 104 S. Ct.
1970, **1988; 1984 U.S. LEXIS
75, ***56; 80 L. Ed. 2d 565
the magistrate determined that the arrestee posed a danger to
himself or to others. The determination of dangerousness, of
course, requires a "judgment call" by the judicial official. By
enjoining petitioner from authorizing pretrial detention for
arrestees charged with nonincarcerable offenses "solely because
they cannot meet bond," the District Court's order threatened
mistaken "judgment calls" with contempt proceedings. Injunctive
relief often will limit a judicial officer's discretion by
increasing the risk of contempt.
- - - - - -End Footnotes- - - - - - - - -[***57]
Finally, harassing litigation and its potential for
intimidation increases in suits where the prevailing plaintiff is
entitled to attorney's fees. Perhaps for understandable reasons,
the Court's opinion passes lightly over the effect of @ 1988. In
fact, that provision has become a major additional source of
litigation. Since its enactment in 1976, suits against state
[*556] officials under @ 1983 have increased geometrically. n16
Congress enacted @ 1988 for the specific purpose of facilitating
and encouraging citizens of limited means to obtain counsel to
pursue @ 1983 remedies. But @@ 1983 and 1988 are available
regardless of the financial ability of a plaintiff to engage
private counsel. The lure of substantial fee awards, n17 now
routinely made to prevailing @ 1983 plaintiffs, assures that
lawyers will not be reluctant to recommend and press these suits.
n18 The Court again ignores reality when it suggests [*557]
that the availability of injunctive relief under @ 1983, combined
with the prospect of attorney's fees under @ 1988, poses no serious
threat of harassing litigation with its potentially adverse
consequences for judicial independence.
- - - - - - - - -Footnotes- - - - - - - - -
n16 Civil rights cases accounted for 8.3% of the total civil
litigation in the Federal District Courts for the 12 months ended
June 30, 1982, and in 1982 civil rights suits filed by state
prisoners against state officials had increased 115.6% over the
number of similar suits filed in 1977 before the prospect of a fee
award under @ 1988 became an added incentive to @ 1983 claims.
Annual Report of the Director of the Administrative Office of the
United States Courts 100-103 (1982). [***58]
n17 Recent fee awards under @ 1988 have increased with the
precipitous rise in hourly rates. In Blum v. Stenson, 465 U.S. 886
(1984), for example, hourly rates of $ 95 to $ 105 for second- and
third-year associates were found to be the "prevailing rates" in
the community. Indeed, large fee awards recently have been awarded
against state-court judges. See, e. g., Morrison v. Ayoob, No.
78-267 (WD Pa. 1983) (fees of $ 17,412 and $ 5,075 awarded against
state-court judges in suit for injunctive and declaratory relief),
aff'd, 727 F.2d 1100 (CA3), rehearing denied, 728 F.2d 176 (1984),
cert. denied, post, p. 973.
n18 Nor, as this case illustrates, do the burdens of litigation
necessarily end when a district court approves a fee as reasonable.
The Court's decision makes it likely that a request for an
additional fee will be made for services rendered in the Court of
Appeals and this Court. Such a request could result in ongoing
litigation. Regrettably, disputes over the reasonableness of @
1988 fee awards often become the major issue in the entire
litigation. This is demonstrated by the fact that two attorney's
fees cases have been litigated in
PAGE 28 466 U.S. 522, *557; 104 S. Ct.
1970, **1988; 1984 U.S. LEXIS
75, ***58; 80 L. Ed. 2d 565
this Court in successive Terms. Hensley v. Eckerhart, 461 U.S. 424
(1983); Blum v. Stenson, supra. See also Copeland v. Marshall, 205
U. S. App. D. C. 390, 641 F.2d 880 (1980) (en banc); National Assn.
of Concerned Veterans v. Secretary of Defense, 219 U. S. App. D. C.
94, 675 F.2d 1319 (1982). Moreover, work on fee petitions may be
compensated at higher hourly rates than work on the merits. See, e.
g., Morrison v. Ayoob, supra (hourly rates of $ 40 and $ 75 awarded
to legal services firm that initially prosecuted the @ 1983 claim;
fees of $ 45 and $ 110 awarded to private firm hired to prepare and
litigate the fee petition).
- - - -End Footnotes- - - - - - - -[***59]
IV
In sum, I see no principled reason why judicial immunity should
bar suits for damages [**1989] but not for prospective
injunctive relief. The fundamental rationale for providing this
protection to the judicial office -- articulated in the English
cases and repeated in decisions of this Court -- applies equally
to both types of asserted relief. The underlying principle, vital
to the rule of law, is assurance of judicial detachment and
independence. Nor is the Court's decision today in the broader
public interest that the doctrine of absolute immunity is intended
to serve. Bradley, 13 Wall., at 349.