# Kemp Ex Rel. Kemp v. Perkins

> Court of Appeals for the Fifth Circuit · May 7, 2009 · 324 F. App'x 409

URL: https://www.frixlaw.com/law-library/cases/66378

## Case

- **Full name:** Latara KEMP, a Minor, by and Through Vera KEMP, Her Natural Mother; Vera Kemp, Individually; Alondus Anderson, Plaintiffs-Appellants v. Willie J. PERKINS, Sr.; Sheriel Perkins; Willie J. Perkins, Jr.; Takiyah Perkins; Jamal Perkins, a Minor, by and Through Willie J. Perkins and Sheriel Perkins, His Natural Parents; Carla Williams; James Littleton, in His Official and Individual Capacities; Keith Armstrong, in His Official Capacity; Webster Nuel, in His Official Capacity; County of Leflore; Solomon Osborne; Kiara Williams, a Minor, by and Through Carla Williams, Her Natural Mother, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 7, 2009
- **Citations:** 324 F. App'x 409
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Benavides, Haynes, Jolly, Per Curiam
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/66378

## How later opinions describe it (automated extraction)

- rejecting an argument that a judge’s appointing a special judge after recusal was not protected by judicial immunity and explaining that, while the judge’s act was in excess of his jurisdiction, he did not act wholly in the absence of jurisdiction

## Opinion text

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 7, 2009

No. 08-60883 Charles R. Fulbruge III
Summary Calendar Clerk

LATARA KEMP, A Minor, By and Through Vera Kemp, Her Natural
Mother; VERA KEMP, Individually; ALONDUS ANDERSON

Plaintiffs-Appellants
v.

WILLIE J PERKINS, SR; SHERIEL PERKINS; WILLIE J PERKINS, JR;
TAKIYAH PERKINS; JAMAL PERKINS, A Minor, By and Through
Willie J Perkins and Sheriel Perkins, His Natural Parents;
CARLA WILLIAMS; JAMES LITTLETON, In His Official and
Individual Capacites; KEITH ARMSTRONG, In His Official
Capacity; WEBSTER NUEL, In His Official Capacity; COUNTY OF
LEFLORE; SOLOMON OSBORNE; KIARA WILLIAMS, a Minor, By and
Through Carla Williams, her Natural Mother

Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:07-CV-41

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*

*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60883

Appellants Latara Kemp (“Kemp”), Vera Kemp, and Alondus Anderson
(“Appellants”) challenge the district court’s grant of summary judgment in favor
of defendants Leflore County, Solomon Osborne, and James Littleton
(“Appellees”), claiming that judicial immunity was improperly applied.
Appellants contend that the district court erred in finding judicial immunity
because (1) Osborne’s appointment of Littleton as a special judge was not a
judicial act; and (2) Osborne had no jurisdiction to appoint a special judge, thus,
Littleton had no authority to detain Kemp. Finding that judicial immunity was
properly applied, we affirm the district court’s summary judgment order.
I. Background
The facts underlying this appeal are largely undisputed. In 2004, Osborne
appointed Littleton as a special judge under Mississippi Code § 43-21-113 by
general standing order.1 On May 5, 2006, Kemp was arrested, booked, and
detained in connection with a civilian complaint that she had assaulted another
individual with a firearm. She was released the next day. On May 9, 2006,
Leflore County, Mississippi Youth Court Judge Osborne conducted a detention
hearing and ordered Kemp detained. After the detention hearing, Osborne
entered an order that stated that he “will” recuse himself because Kemp’s
attorney was representing an individual in a separate case filed against Osborne
in his personal capacity, ordered Kemp detained until a hearing could be held,
and referred the case to “Special Judge Littleton” for further proceedings.
Littleton conducted a subsequent detention hearing, ordering Kemp detained by
order dated May 10, 2006.

1
By a standing order dated August 2, 2004, Littleton was appointed special judge of
all matters for which Osborne declared himself unable to serve under Mississippi Code § 43-
21-113. That provision states, in part: “When a judge shall certify in writing that he is unable
to serve because of illness or absence from the county or district, the judge may appoint as
provided in Section 43-21-123 a special judge to serve in his stead. A special judge shall
possess all the powers and perform all the duties of the regular judge.” See MISS . CODE ANN .
§ 43-21-113 (1979).

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No. 08-60883

Kemp challenged Littleton’s authority by petitioning for a writ of
prohibition in the Mississippi Supreme Court. The Supreme Court held that,
“upon recusing himself, Judge Osborne lacked authority to take further actions
in this matter,” that Judge Osborne was without authority to appoint Littleton
as special judge in the Kemp matter, and that all actions, rulings, and orders
entered by Littleton in that case should be vacated. See In re L.R. and Vera
Kemp, No. 2006-M-00830-SCT (Miss. May 26, 2006). The court also ordered
Kemp released because she had been in custody for more than forty-eight hours.
Id. Kemp subsequently filed a civil suit against Appellees and a number of other
defendants, and the case was removed to federal court. The district court
granted summary judgment as to defendants Osborne, Littleton, and Leflore
County, finding that judicial immunity applied. This appeal ensued.
II. Standard of Review
The district court’s application of judicial immunity is a question of law,
subject to de novo review. Mays v. Sudderth, 97 F.3d 107, 110 (5th Cir. 1996).
III. Discussion
“Absolute judicial immunity extends to all judicial acts which are not
performed in the clear absence of all jurisdiction.” Adams v. McIlhany, 764 F.2d
294, 297 (5th Cir. 1985) (citing Stump v. Sparkman, 435 U.S. 349 (1978)).
Officials whose responsibilities are functionally comparable to those of a judge
are also absolutely immune from liability. Antoine v. Byers & Anderson, Inc.,
508 U.S. 429, 435-36 (1993); Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir.
1989). Against a backdrop of broad applicability, there are only two exceptions
to judicial immunity: (1) lawsuits challenging actions taken outside the judge’s
judicial capacity; and (2) lawsuits challenging actions taken in the “complete
absence of all jurisdiction.” Davis v. Tarrant County Tex., No. 07-11223, 2009
WL 931169, at *5 (5th Cir. Apr. 8, 2009) (quoting Mireles v. Waco, 502 U.S. 9, 11
(1991)). Appellants here claim that both exceptions to judicial immunity apply.

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No. 08-60883

A. Were the Acts in Question Judicial Acts?
In determining whether an action is judicial, a court looks to the nature
of the act itself; that is, whether the challenged act is a function normally
performed by a judge. Id. (citing Mireles, 502 U.S. at 12). This circuit has
adopted a four-factor test for determining whether a judge’s actions were judicial
in nature: (1) whether the precise act complained of is a normal judicial function;
(2) whether the acts occurred in the courtroom or appropriate adjunct spaces
such as the judge’s chambers; (3) whether the controversy centered around a
case pending before the court; and (4) whether the acts arose directly out of a
visit to the judge in his official capacity. Id. (citing Ballard v. Wall, 413 F.3d
510, 515 (5th Cir. 2005)); see also McAlester v. Brown, 469 F.2d 1280, 1282 (5th
Cir. 1972). These factors are broadly construed in favor of immunity. Davis,
2009 WL 931169, at *5 (citing Ballard, 413 F.3d at 515). Applying this test, we
recently held that the act of selecting applicants for inclusion on a list of
attorneys eligible for court appointment constitutes a judicial act protected by
absolute judicial immunity. Id. at *9.
Considering this precedential backdrop, Osborne’s appointment of
Littleton as a special judge and Littleton’s order detaining Kemp clearly
constitute judicial acts. These instances of challenged conduct are normally
performed by judges, occurred in or near a courtroom, concerned the case against
Kemp pending in Leflore County’s youth court, and arose directly out of visits
to Osborne and Littleton in their official capacities as judge and special judge.
Recusal, appointment of a special judge for a pending case, and the detention of
a criminal defendant are not the types of administrative or ministerial conduct
for which judicial immunity is unavailable.
The cases cited by Appellants either concern purely administrative
decisions made outside the litigation process or do not stand for the proposition
that Obsorne and Littleton’s conduct was non-judicial. See Forrester v. White,

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No. 08-60883

484 U.S. 219, 229 (1988) (declining to find a judge’s demotion and dismissal of
a probation officer a judicial act); Richardson v. Koshiba, 693 F.2d 911, 914 (9th
Cir. 1982) (finding that the recommendation of candidates for judicial office does
not constitute a judicial act); Roth v. King, 449 F.3d 1272, 1286-87 (D.C. Cir.
2006) (holding that selection of attorneys for inclusion on Criminal Justice Act
panels is a judicial act). The acts challenged by Appellants clearly pertain to the
judicial function of “‘resolving disputes between parties, or of authoritatively
adjudicating private rights.’” Antoine, 508 U.S. at 435-36 (quoting Burns v.
Reed, 500 U.S. 478, 500 (1991) (Scalia, J., concurring in judgment in part and
dissenting in part)). Such acts are certainly no less “judicial” than the
appointment of counsel we considered in Davis. Accordingly, they are judicial
acts for the purpose of immunity analysis.
B. Was There a Clear Absence of Jurisdiction?
Appellants also urge that judicial immunity should not apply because the
appointment of Littleton was done without subject matter jurisdiction. Judicial
immunity does not extend to acts committed “in the clear absence of all
jurisdiction[.]” Holloway v. Walker, 765 F.2d 517, 523 (5th Cir. 1985). However,
this Court has broadly construed the term “jurisdiction,” explaining:
Where a judge does not clearly lack all subject-matter jurisdiction,
he does not clearly lack all jurisdiction, and “the same principle of
exemption from liability which obtains for errors committed in the
ordinary prosecution of a suit where there is jurisdiction of both
subject and person, applies in cases of this kind, and for the same
reasons.”

Id. (quoting Bradley v. Fisher, 80 U.S. 335, 352 (1871)) (emphasis in original).
Indeed, “[w]here a court has some subject-matter jurisdiction, there is sufficient
jurisdiction for immunity purposes.” Adams, 764 F.2d at 298 (citing Bradley, 80
U.S. at 352)). There is a meaningful distinction between judicial acts which
occur in “excess of jurisdiction” – which receive judicial immunity – and those

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No. 08-60883

which take place wholly lacking jurisdiction – which do not. See Stump, 435
U.S. at 356-57 (quoting Bradley, 80 U.S. at 352).
1. Osborne
We agree with the district court that Osborne’s appointment of Littleton
occurred in excess of his statutory authority, but that Osborne did not lack
jurisdiction altogether. There is no doubt that as a Mississippi youth court
judge, Osborne had statutory authority over the assault case against Kemp,
including her detention. See M ISS. C ODE A NN. §§ 43-21-151, 301 (1979). In
addition, Osborne had the statutory authority to appoint special judges. See
M ISS. C ODE A NN. § 43-21-113. Indeed, the 2004 standing order appointing
Littleton as special judge shows that Osborne had some subject matter
jurisdiction to appoint a special judge. Although the Mississippi Supreme Court
eventually held that Osborne was without statutory authority to appoint
Littleton in this particular matter and vacated Littleton’s orders, such ruling did
not render Osborne wholly without jurisdiction to appoint a special judge under
§ 43-21-113. Osborne had the authority to appoint Littleton as special judge in
particular circumstances; he simply exercised that authority incorrectly here.
The Supreme Court has explained, “[a] judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in excess
of his authority; rather, he will be subject to liability only when he has acted in
the ‘clear absence of all jurisdiction.’” Stump, 435 U.S. at 356-57 (quoting
Bradley, 80 U.S. at 351).
In Adams v. McIlhany, 764 F.2d at 298-99, this Court found “some subject-
matter jurisdiction” where a state criminal court judge improperly punished the
mother of three defendants for “constructive contempt” after she sent him an
accusatory letter complaining of his treatment of her sons. There, the district
judge summarily sentenced Adams to thirty days in jail, despite the fact that she
was provided no due process rights and Texas law did not empower judges to

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No. 08-60883

punish out-of-court contempt without affording the alleged contemnor the
assistance of counsel, the right to call witnesses, and the opportunity to present
relevant testimony. Id. at 296, 298 (citing Ex parte Ratliff, 3 S.W.2d 406, 407
(1928)).2 Regardless, the Court held that the district judge’s general jurisdiction
to punish contempt was sufficient to show that Judge McIlhany had “some”
subject-matter jurisdiction for judicial immunity purposes, and, accordingly,
found McIlhany immune. Id. at 299. Here, too, we conclude that Osborne’s
misapplication of the Mississippi special judge statute does not wholly strip him
of subject matter jurisdiction.
2. Littleton
Finally, Appellants claim that Littleton’s conduct as special judge is not
entitled to judicial immunity, because his appointment was found to be
improper, depriving him of subject matter jurisdiction. We conclude that
Littleton had sufficient subject matter jurisdiction for immunity purposes. A
special judge or similar delegate is entitled to judicial immunity when his
actions are “taken in good faith and within the scope of authority granted[.]”
Davis v. Bayless, 70 F.3d 367, 373 (5th Cir. 1995); see also Boullion v.
McClanahan, 639 F.2d 213, 214 (5th Cir. 1981). Here, Littleton was appointed
by a general standing order to “possess all powers and perform all the duties of
. . . Youth Court Judge in all matters” in which Osborne was unable to serve due
to illness or absences, under section 43-21-113. He was also specifically
appointed in this case by Judge Osborne. Littleton exercised this authority by
presiding over Kemp’s assault case until the Mississippi Supreme Court found
that his appointment was made in error. Although Littleton’s appointment and
detention order were later vacated by the Mississippi Supreme Court, it does not
follow that he lacked all jurisdiction. See Holloway, 765 F.2d at 523.

2
Indeed, the Court there noted that summary punishment for constructive contempt
is unconstitutional. Id. at 299.

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No. 08-60883

Indeed, Mississippi courts have long held that the acts of a de facto judge
are valid, whether or not she was properly appointed or qualified for the office.
See, e.g., Nelson v. Mississippi, 626 So. 2d 121, 125 (Miss. 1993); Upchurch v.
City of Oxford, 17 So. 2d 204, 205 (Miss. 1944); Bird v. Mississippi, 122 So. 539,
540 (Miss. 1929)). In Nelson v. Mississippi, the Mississippi Supreme Court
considered whether a conviction could be collaterally attacked because the
special judge who presided over the case was improperly appointed under the
applicable state statute. Nelson, 626 So. 2d at 124. The appellant there claimed
that the improperly-appointed special judge had no power to act and,
accordingly, the plea and sentence should be vacated. Id. Refusing to vacate the
conviction and sentence, the Mississippi Supreme Court reaffirmed that:
one who acts pursuant to color of authority, though without legal
authority, nevertheless performs valid acts. Any challenge
regarding the validity of [the] actor’s appointment must be brought
against the actor in proceedings contesting the right to office.
Id. at 125.
We also find instructive the Mississippi Court of Appeals’s analysis in
McDonald v. McDonald, 850 So. 2d 1182, 1187 (Miss. Ct. App. 2002). There, the
Mississippi Supreme Court’s Chief Justice appointed a special judge under a
statute that the appellant claimed was unconstitutional. Id. at 1186.3 The
appellant argued that the special judge was therefore improperly appointed,
voiding his subsequent custody order. Id. The appellate court deemed the
constitutional argument waived, but opined that:
[E]ven were we to find that there were flaws in the procedure, the
appointment was pursuant to law and made Griffin at least a de
facto judge, whose orders are valid until the issue of authority is
properly raised and determined[.]

3
The appellant urged that the Mississippi constitution gives the governor sole
authority to appoint a special judge after a recusal. Id.

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No. 08-60883

Id. at 1187. The court further explained that a de facto officer in Mississippi is:

one who exercises the powers and discharges the functions of an
office, being then in possession of the same under color of authority,
but without actual right thereto . . . . It is well settled in this state
that acts of a de facto judge are valid, regardless of whether he was
properly appointed or qualified or not.

Id. (quoting Crocker v. Sears, Roebuck & Co., 346 So. 2d 921, 922-23 (Miss.
1977)) (internal citations and quotation marks omitted).
Since Littleton was empowered generally to act as a youth court judge
whenever Osborne declared himself unable to serve under Mississippi Code § 43-
21-113 and was specifically ordered to preside over Kemp’s case, and because
Mississippi law deems the actions of an improperly-appointed special judge valid
until the issue of his authority is determined, we conclude that Littleton here
did not act with a clear absence of jurisdiction. Despite the fact that his actions
were later voided by the Mississippi Supreme Court, Littleton had sufficient
subject matter jurisdiction to support judicial immunity.
IV. Conclusion
Finding that the challenged actions by Osborne and Littleton were judicial
in nature and were not taken in the complete absence of subject-matter
jurisdiction, we conclude that judicial immunity bars Appellants’ suit against
them. Accordingly, we AFFIRM the district court’s summary judgment order.

9

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/66378. Public record. Not legal advice.