Conover v. Montemuro

GIBBONS, Circuit Judge

(concurring in the result).

The opinion of the court on appellees’ petition for rehearing reaches the correct result. I concur in that result and in the reinstatement of those portions of the majority opinion heretofore filed of which the opinion of the court on appellees’ petition for rehearing approves. I do not concur, however, in the express reservation of approval of that part of the majority panel opinion which dealt with the contention that state court judges are immune from federal injuncfive relief. That reservation, in the context of this case, is unfortunate since it serves to introduce elements of uncertainty in areas of the law which heretofore were certain, and to create ambiguities for the district court as to the effect of our mandate on remand. The introduction of these uncertainties and ambiguities in an opinion disposing of the petition for rehearing is entirely unwarranted, since that petition did not address itself to the immunity issue. Thus, the majority has chosen the vehicle of an opinion on a petition for rehearing on other issues to act sua sponte in expressing its reservations about that part of the panel opinion dealing with immunity. That the majority would so far depart from the normal practice of this court can only lend substance and respectability to positions on the now uncertain areas of the law which, at least to me, were heretofore insubstantial and unrespectable.

The first area of the law to which uncertainty has been introduced is that of appellate procedure. The judgment appealed from dismissed the plaintiffs’ complaint.

“In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a *1095 wrong ground or gave a wrong reason.” 1 Helvering v. Gowran, 302 U.S. 238, 245 , 58 S.Ct. 154, 158 , 82 L.Ed. 224 (1937).

Compare Law Students Civil Rights Research Council, Inc., v. Wadmond, 401 U.S. 154 , 158 n. 9, 91 S.Ct. 720 , 27 L.Ed. 2d 749 (1971), in which the Supreme Court declined to examine the judicial immunity doctrine. In Wadmond, an injunction had been entered against the appellee-defendants, who did not file a cross-appeal when the plaintiffs appealed. Thus the appellees in Wadmond were barred on appeal from attacking on immunity grounds an injunction against them from which they did not appeal. They ran afoul of another equally well settled rule that a party who is not satisfied by a final judgment cannot be heard in opposition thereto when his adversary appeals unless he has filed a cross-appeal. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 191 , 57 S.Ct. 325 , 81 L.Ed. 593 (1937). A nonappealing party in other words, may not attack a judgment, but may support it by any matter, appearing in the record. These two rules of appellate procedure were placed in a nice juxtaposition by Mr. Justice Brandeis:

“[A] party who does not appeal from a final decree of the trial court cannot be heard in opposition thereto when the case is brought here by the appeal of the adverse party. In other words, the appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to ing in the record, although his argusupplement the decree with respect to a matter not dealt with below. But it is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearment may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” United States v. American Railway Express Co., 265 U.S. 425, 435 , 44 S.Ct. 560, 564 , 68 L.Ed. 1087 (1924) (Footnote omitted).

These rules apply to appeals from the district court to this court as well as to appeals to the Supreme Court. 9 J. Moore, Federal Practice ¶ 204.11[3] at 933 (2d ed. 1972). Under these rules the Supreme Court properly declined to consider the immunity contention which had been rejected by Judge Friendly in the district court. Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 123-124 (S.D.N.Y.1969) (three-judge court.) . But under these rules, in considering the judgment dismissing the complaint this court was required to consider whether, even though the grounds relied on by the district court were erroneous, a valid ground for dismissal was presented in the record. The immunity contention was a matter of record. It had, indeed, been rejected in a district court opinion on an interlocutory aspect of the case. Conover v. Montemuro, 304 F.Supp. 259 (E.D.Pa.1969). Acceptance of the immunity doctrine would require an affirmance.

Have we now adopted a new set of rules as to when a completely successful appellee must file a cross-appeal? If we have adopted a new set of rules, what is the effect, upon remand, of the failure of a completely successful appellee to cross-appeal ? If we have not adopted a new set of rules, what is the intended effect, upon remand, of the majority opinion on rehearing? The ambiguities of the majority opinion leave these matters for resolution by the district court. If that court concludes that we have in fact adopted a new set of rules as to when *1096 a completely successful appellee must file a cross-appeal, then it must resolve the issue whether by failing to file a notice of cross-appeal the appellees have made the original district court ruling on immunity res adjudicata. If, on the other hand, it concludes that we have not adopted a new set of rules as to when a notice of cross-appeal must be filed, then it must interpret the basis for the excision of the immunity discussion from the panel opinion. Possibly some sort of waiver is operating against appellees. If so, the district court must determine whether the waiver is for this round of the fight or for the complete bout.

So I ask, on behalf of the district judge who must deal with the case on remand, is the immunity contention, which was specially pleaded and never abandoned, still in the case? The question is hardly academic, in view of the majority’s sua sponte action in withholding approval of the discussion of that contention.

This brings me to the reference in the majority opinion on rehearing to “various views on this issue.” The issue is whether state court judges are immune from the compulsory civil process of an injunction of the article III courts. There is no thoughtful opinion, indeed no reasoned analysis, so holding. The majority of this court declines at this time to express a view of the law which recognizes a distinction between judicial immunity from civil liability in damages and immunity from civil process. In fact by declining such expression what it has done is withdraw this court’s imprimatur from what was settled law in this circuit.

In Allen v. Biggs, 62 F.Supp. 229 (E.D.Pa.1945) (Ganey, J.), the district court recognized that judges of this court could not be sued for money damages for acts done in the performance of their official duties. That case, unlike this, involved a federal judicial officer. It recognized that the privilege of freedom from liability for damages was a matter of common law, but the opinion did not specify whether the source of the privilege was state or federal common law. The same issue came before this court, this time with respect to a state judicial officer sued for money damages, in Picking v. Pennsylvania R. Co., 151 F.2d 240, 250 (3d Cir. 1945). Judge Biggs, the defendant in Allen v. Biggs, supra, held that state court judges were not immune from damage suits brought in the federal courts pursuant to the jurisdiction conferred by the Civil Rights Act of 1870. Recognizing the common law privilege referred to in Allen v. Biggs, he said:

“But the privilege as we have stated was a rule of the common law. Congress possessed the power to wipe it out. We think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated by that act and in fact did so.” 151 F.2d at 250 .

In Cooper v. Hutchinson, 184 F.2d 119 (3d Cir. 1950), this court considered an application for injunctive relief against a state court judge for prohibiting an out-of-state attorney from representing a defendant in a capital case. Judge Goodrich recognized that there was equitable jurisdiction in the federal courts to issue such an injunction. Cooper v. Hutchinson, supra, is, of course, most notable for the proposition that the Civil Rights Act of 1870 is an express exception to the Anti-Injunction Act of 1792, a view ultimately adopted by the Supreme Court in Mitchum v. Foster, 407 U.S. 225 , 92 S.Ct. 2151 , 32 L.Ed.2d 705 (1972). But it is also a clear holding that a state court judge is not immune from the civil process of an injunction issued by a federal court.

Judge Biggs, in Picking v. Pennsylvania R. Co., supra, proved to be less prophetic than usual, for in Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951), the Supreme Court rejected his construction of the Civil Rights Act of 1870 as abolishing common law privileges. Tenney v. Brandhove, supra, recognized that the common law immunity of legislators from civil lia *1097 bility in damages survived the Civil Rights Act. In Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), cert. denied, 386 U.S. 1021 , 87 S.Ct. 1367 , 18 L.Ed.2d 457 (1967), this court recognized that Tenney v. Brandhove, supra, overruled Judge Biggs’ construction of the Civil Rights Act, and that Allen v. Biggs, supra, rather than Picking v. Pennsylvania R. Co., supra, was the governing precedent with respect to actions seeking money damages from state court judges. In Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), the Supreme Court, in a case involving a suit against a state court judge for money damages, reiterated that the Civil Rights Act had not abolished all common law immunities, and that the judge was immune from liability for damages.

The vigorous dissent of Justice Douglas, tracing the legislative history of the Civil Rights Act, espouses the construction of that statute announced in the Picking case by Judge Biggs. If I were free to do so I would espouse the same construction, especially since the unwillingness of state judges to enforce the law on behalf of freedmen and loyalists in the post-Civil War years figured so prominently as a motivation for the enactment of the statute. But in our framework of government, history, including legislative history, is what a majority of the Supreme Court chooses to make of it. Thus we are bound by the Pierson v. Ray, supra, construction of the Civil Rights Act.

But the holdings of Tenney v. Brandhove, supra, and of Pierson v. Ray, supra, are quite clearly limited to the Picking situation, and do not apply to Cooper v. Hutchinson, supra. The Supreme Court did not either in Tenney or in Pierson , refer to Cooper v. Hutchinson, supra, although for years it had demonstrated its awareness and knowledge of the significance of that case. 2 Neither Tenney nor Pierson mention the injunction problem, and both explicitly refer to the common law as the source of the immunity which they recognize. 3 Thus, the starting point of any discussion of judicial immunity from the civil process of the federal courts must be the common law as of 1870. Here we have rather clear contemporaneous expressions.

In Pierson v. Ray, supra, the Court found the common law of judicial immunity in Bradley v. Fisher, 80 U.S. (13 Wall.) 335 , 20 L.Ed. 646 (1871). The Bradley litigation, of which Bradley v. Fisher, supra, is only one aspect, precisely illustrates the distinction between immunity from civil liability in damages and immunity from coercive civil process. Bradley was the attorney for Dr. Suratt in the criminal case growing out of the assassination of President Lincoln. Fisher was the judge who presided at that trial. Judge Fisher took umbrage at the manner in which Bradley conducted the defense and at the conclusion of the case struck Bradley’s name from the roll of the court; Bradley sued Fisher for damages consequent thereon. Justice Field, writing for the Court on the authority of Randall v. Brigham, 74 U.S. (7 Wall.) 523 , 19 L.Ed. 285 (1869), held that Judge Fisher could not be made to answer in damages. Randall v. Brigham, supra, had held that judges of a state court could not be held liable for damages for wrongfully disbarring an attorney. That case arose, of course, prior to the enactment of the Civil Rights Act of 1870, so that the Pierson v. Ray, supra, issue was not presented. Taken together, then, Bradley v. Fisher, supra, and Randall v. Brigham, supra, establish that *1098 neither federal nor state judges may be held liable in damages for acts in the performance of their judicial duties.

But Judge Fisher was not the only judge who had taken umbrage at the way in which Bradley had represented Dr. Suratt. The Supreme Court of the District of Columbia had also disbarred him for his alleged contumacy toward Judge Fisher. Bradley filed in the Supreme Court of the United States a petition for an original writ of mandamus directed to the Supreme Court of the District of Columbia to restore him to the roll of attorneys. Justice Nelson, writing for the Supreme Court, held that the peremptory writ of mandamus should issue to the judges of the Supreme Court of the District of Columbia. Ex parte Bradley, 74 U.S. (7 Wall.) 364 , 19 L.Ed. 214 (1868). Thus in the very term in which the Court first recognized the common law immunity of judges from damage actions it also recognized that such immunity had nothing at all to do with those civil processes by which the future conduct of judges was controlled. Ex parte Bradley, supra, relied upon Chief Justice John Marshall’s opinion in Ex parte Crane, 30 U.S. (5 Pet.) 188 , 8 L.Ed. 92 (1831), which had held that mandamus would issue against a federal circuit judge to compel him to sign a bill of exceptions so that a writ of error might be pursued in the Supreme Court. See also Van Dusen v. Barrack, 376 U.S. 612 , 84 S.Ct. 805 , 11 L.Ed.2d 945 (1964). Chief Justice Marshall found authority for the issuance of this writ against a judge in Section 13 of the Judiciary Act of 1789, 1 Stat. 73 . It will be recalled that in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 , 2 L.Ed. 60 (1803), the Court had held that § 13, to the extent that it attempted to confer original mandamus jurisdiction upon the Supreme Court to entertain suits against nonjudicial officers, was unconstitutional. Ex parte Crane, supra, distinguished mandamus in the exercise of the Court’s appellate jurisdiction. Marshall wrote:

“That a mandamus to sign a bill of exceptions is ‘warranted by the principles and usages of law,’ is, we think, satisfactorily proved by the fact, that it is given in England by statute; for the writ given by the statute of Westm.

II., is so, in fact, and is so termed in-the books. The judiciary act speaks of usages of law generally, not merely of common law. In England, it is awarded by the chancellor; but in the United States, it is conferred expressly on this court, which exercises both common law and chancery powers; is invested with appellate power, and exercises extensive control over all the courts of the United States. We cannot perceive a reason, why the single case of a refusal by an inferior court to sign a bill of exceptions, and thus to place the law of the case on the record, should be withdrawn from that general power to issue writs of mandamus to inferior courts, which is conferred by statute.

In New York, where a statute exists, similar to that of Westm. II., an application was made to the supreme court for a mandamus to an inferior court to amend a bill of exceptions, according to the truth of the case. The court treated the special writ given by the statute as a mandamus, and declared, that it was so considered in England; and added, that ‘though no instance appears of such a writ issuing out of the king’s bench, where an inferior court refused to seal a bill of exceptions, there is no case denying to that court the power to award the writ.’ ‘It ought to be used, where the law has established no specific remedy, and where in justice and good government there ought to be one.’ ‘There is no reason why the awarding of this particular writ does not fall within the jurisdiction of this court, or why it should be exclusively confined to the court of chancery.’ In the opinion, then, of the very respectable court, which decided the motion made for a mandamus, in Sikes v. Ransom, 6 Johns. 279 , the supreme court of *1099 New York possesses the power to issue this writ, in virtue of its general superintendence of inferior tribunals. The judiciary act confers the power expressly on this court. No other tribunal exists by which it can be exercised.” 30 U.S. at 193-194.

The quoted language “warranted by the principles and usages of law” is from Section 13 of the Judiciary Act of 1789 which created the Supreme Court's appellate jurisdiction, and that section confers the identical appellate jurisdiction “from the circuit courts and the courts of the several states.” It is perfectly clear, then, that the Court had the same power to issue corrective civil process to a state court.

The Bradley cases are significant, for present purposes, because they deal with the issue of judicial immunity in the context of the court’s nonadjudicatory judicial duties. Bradley v. Fisher, supra, holds that immunity from liability in damages applies even to such nonadjudicatory functions as controlling membership in the bar. Ex parte Bradley, supra, therefore, must be read as dealing with activities as to which the common law immunity is applicable. In this context the case of Ex parte Virginia, 100 U. S. 339 , 25 L.Ed. 676 (1879), is notable, for it recognizes that a state court judge can be made to answer criminally for violating the criminal provisions of the Civil Rights Act of 1870 in the performance of nonadjudicatory judicial duties. It seems clear that the same judge would under Bradley v. Fisher, supra, have been immune from liability for damages. Thus, the common law immunity recognized in Pierson v. Ray, supra, is confined to liability for damages. It is not even an immunity from criminal liability.

Section 14 of the Judiciary Act of 1789, the so-called “all writs” section, the modern counterpart of which is found at 28 U.S.C. § 1651 (a), gave all the courts of the United States the power “to issue writs . . . which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” From the virtual identity of language in the case of § 13 “warranted by the principles and usages of law”, and in the case of § 14 “agreeable to the principles and usages of law” it seems clear that the law with respect to amenability to civil process was the same under both sections. The occasions upon which a lower federal court would be called upon to direct its process to state court judges were, of course, limited by the narrow grant, prior to 1870 of civil jurisdiction in such courts. 4 There was no federal question jurisdiction in the lower federal courts until the Civil Rights Act of 1866, 14 Stat. 27 , and no general grant of such jurisdiction until 1875. See 18 Stat. 470 . Thus it was only the Supreme Court which was likely to have occasion, prior to 1875, to issue corrective civil process against state or lower federal courts, and it is the practice of that Court that we must look for guidance as to the scope of judicial immunity.

It was once asserted with some force that state court judges were immune *1100 from the civil process of the Supreme Court issued pursuant to Section 13 of the Judiciary Act of 1789. In Martin v. Hunter’s Lessee, 14 U.S., 4 L.Ed. 97 (1 Wheat.) 304 (1816), the assertion arose in the context of the refusal of the Court of Appeals of Virginia to obey the mandate of the Supreme Court in a case sustaining a claim based upon a treaty of the United States. The Virginia court contended that a writ of error could not run to it because it enjoyed sovereign immunity, and its judgments were, therefore, entirely immune from the power of the article III courts. Justice Story’s opinion forcefully rejects the contention that the actions of state court judges are beyond the reach of the Supreme Court’s corrective process, reverses the judgment of the Court of Appeals of Virginia, but declines to reach the question whether, if the second time around the mandate is disobeyed, the Supreme Court will issue a writ of mandamus. 14 U.S. at 361 . The clear implication of Story’s opinion, however, is that if compulsory process must be directed to a state court judge in order to enforce the Supreme Court’s mandate, it will be. See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 , 5 L.Ed. 257 (1821). Justice Johnson’s concurring opinion is more tentative. He says:

“It will be observed, in this case, that the court disavows all intention to decide on the right to issue compulsory process to the state courts; thus leaving us, in my opinion, where the constitution and laws place us— supreme over persons and cases, so far as our judicial powers extend, but not asserting any compulsory control over the state tribunals.” 14 U.S. at 361 .

Johnson’s timidity with respect to compulsory process acting upon the state court judges directly is not based upon any notion that at common law judges generally were immune from civil process. He merely expresses doubt considering the availability of injunctive relief directed against the parties, as to the necessity for resorting to compulsory or restrictive process upon the state tribunal. 14 U.S. at 381 . For the most part Johnson has been proved to be right. Even with respect to removal jurisdiction, which especially prior to 1870 was the one area in which lower federal and state court judges were likely to come into conflict, the lower federal courts usually were able to vindicate their jurisdiction under Section 12 of the Judiciary Act of 1789 and subsequent removal statutes by the issuance of injunctions running to the parties only. See, e. g., Dietzsch v. Huidekoper, 103 U.S. 494, 497 , 26 L.Ed. 497 (1880); French v. Hay, 89 U.S. (22 Wall.) 250 , 22 L.Ed. 857 (1874). But the eventuality of contumacy in the removal situation is recognized in 28 U.S.C. § 1447 (b) which authorizes the lower federal courts to issue writs of certiorari, and such writs have on occasion been directed to state courts. E. g., State Improvement-Development Co. v. Leininger, 226 F. 884 (N.D.Cal.1914). In Deen v. Hickman, 358 U.S. 57 , 79 S.Ct. 1 , 3 L.Ed.2d 28 (1958) (per curiam), the Supreme Court faced the problem of a contumacious state court. It granted leave to file a petition for mandamus against a Texas court which persisted in a course deemed to be inconsistent with the mandate in a prior case. The writ did not actually issue, since the Court assumed that the Texas court would, the second time, obey. But Deen v. Hickman, supra, recognizes that the same power to issue compulsory corrective process to state judges exist as was recognized in Ex parte Bradley, supra, and in Ex parte Crane, supra, with respect to federal judges. See also In re Herndon, 394 U.S. 399 , 89 S.Ct. 1107 22 L.Ed.2d 367 (1969) (per curiam), recognizing the power of the court to entertain a contempt motion directed against a judge who flouted the court’s mandate.

There is no distinction between the Supreme Court’s power, under Section 13 of the Judiciary Act of 1789, to issue a writ of mandamus, and the power of the lower federal courts, under Section 14 of that Act, to issue the same *1101 writ. Marbury v. Madison, supra, held that the writ could only be issued by the Supreme Court in aid of its appellate jurisdiction, not as an original matter. McIntire v. Wood, 11 U.S. (7 Cranch) 504 , 3 L.Ed. 420 (1813), interpreted § 14 as confining the lower federal courts’ mandamus jurisdiction to cases in aid of their jurisdiction and not to original proceedings. That was so, except in the District of Columbia, until the enactment in 1962 of 28 U.S.C. § 1361 . From this it might be argued that although judges are subject to compulsory civil process in aid of the jurisdiction of the issuing court, appellate or original, they are nevertheless immune from original corrective process such as an injunction. There are several defects in this argument.

The first defect is historical. Both the writ of mandamus and the writ of injunction emanated from the same source, the King’s Chancellor. As to mandamus, see Chief Justice John Marshall’s discussion, quoted above, in Ex parte Crane, supra. The equity jurisdiction of the lower federal courts, conferred originally in Section 11 of the Judiciary Act of 1789, is the jurisdiction of the Court of Chancery in that year. See, e.g., Markham v. Allen, 326 U.S. 490, 494 , 66 S.Ct. 296 , 90 L.Ed. 256 (1946); Sutton v. English, 246 U.S. 199 , 38 S.Ct. 254 , 62 L.Ed. 664 (1918); Farrell v. O’Brien, 199 U.S. 89 , 25 S.Ct. 727 , 50 L.Ed. 101 (1905). The Chancellor’s equity jurisdiction had its origin in the King’s Special Council, which was the predecessor of the Privy Council, and which aided the Crown in the exercise of its prerogative, which embraced matters not within the jurisdiction of the law courts. The Special Council eventually delegated to the Chancellor disposition of matters of grace which were within the King’s prerogative. From this practice grew the Chancellor’s equity, as distinguished from his ordinary jurisdiction. See 1 J. Pomeroy, A Treatise on Equity Jurisprudence, §§ 31-38 (5th ed. 1941). (Hereinafter Pomeroy).

“From later records it appears that the council acted on all applications to obtain redress for injuries and acts of opression, wherever, from the heinousness of the offense, or the rank and power of the offender, or any other cause, it was probable that a fair trial in the ordinary courts would be impeded, and also wherever, by force and violence, the regular administration of justice was hindered.” 1 Pomeroy, § 31 at p. 37.

Thus, the equitable jurisdiction referred to in the Judiciary Act of 1789 was an aspect of the sovereignty of the King, ceded to the central government by article III of the Constitution, and conferred by Congress on the lower federal courts in § 11 of that Act. Judicial immunity, on the other hand, presented a different aspect of the King’s sovereignty. The King was the repository of all sovereignty, including judicial power. The common law judges were his surrogates in exercising his judicial power. Their immunity was merely a corollary to his. 5 Permitting an action for damages against one of the King’s surrogates in a court of coordinate authority would slander his justice. Floyd v. Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (Star Chamber 1607); Randall v. Brigham, 74 U.S. (7 Wall.) 523, 539 , 19 L.Ed. 285 (1868); Pierson v. Ray, 386 U.S. 547, 558, 565 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967) (Douglas, J. dissenting). But the rationale for immunizing the King’s surrogates from damage suits in courts of coordinate authority simply does not apply when the issue is immunity from the compulsory civil process of the Chancellor exercising *1102 the King’s prerogative. Indeed the very suggestion that the law judges were immune from compulsory civil process issued by the Chancellor exercising the King’s prerogative is inconsistent with the long history of complaints by the law judges to Commons about the Chancellor’s interference with proceedings in their courts. 6 See 1 Pomeroy § 39 at p. 44. The King’s prerogative, formerly exercised by the Chancery Court, is by virtue of article III, a part of the judicial power of the United States, and is exercised by each of the federal courts within the respective jurisdictions conferred by Congress. There is simply no valid distinction between the powers of any of these courts to subject judges to compulsory process in the exercise of the prerogative on behalf of what in matters of federal concern is the superior sovereignty.

The second defect is pragmatic. The effect upon the respondent judge is the same in each ease. He is directed, upon pain of punishment for disobedience, to conform his future conduct to the issuing court’s order. If a judge is immune from one such order he should be immune from all. Notions of judicial independence, to the extent that they are relied upon to support the common law immunity of judges, apply equally to any compulsory process, whether issued in aid of the jurisdiction of the issuing court, or as an original proceeding.

The cases, then, in which the Supreme Court has entertained applications for writs of mandamus to federal and state court judges, and the cases in which federal courts have directed writs of certiorari or subpoenas to state court judges, are authority for the absence of any judicial immunity from civil coercive process directed at controlling future conduct, and those cases have in no way been affected by the decision in Pierson v. Ray, supra.

Those cases in which since Pierson v. Ray, supra, courts have directed their attention to the distinction between immunity from liability for damages and immunity from compulsory process to control future conduct have recognized as much. See Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir. 1972), cert. denied, 409 U.S. 889 , 93 S.Ct. 126 , 34 L.Ed.2d 147 (1972); Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), cert. granted, 411 U.S. 915 , 93 S.Ct. 1544 , 36 L.Ed.2d 306 (1973); Jacobson v. Schaefer, 441 F.2d 127, 130 (7th Cir. 1971); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970); United States v. McLeod, 385 F.2d 734 , 738 n. 3 (5th Cir. 1967) (implicitly); Haley v. Troy, 338 F.Supp. 794, 800 (D.Mass.1972); Cassidy v. Ceci, 320 F.Supp. 223, 228 (E.D.Wis.1970); Rakes v. Coleman, 318 F.Supp. 181, 192 (E.D.Va.1970); Koen v. Long, 302 F.Supp. 1383, 1389 (E.D.Mo.1969), aff’d per curiam, 428 F.2d 876 (8th Cir. 1970), cert. denied, 401 U.S. 923 , 91 S.Ct. 877 , 27 L.Ed.2d 827 (1971); Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F.Supp. 117, 123 (S.D.N.Y.1969) (three-judge court) (Friendly, J.), aff’d on other grounds, 401 U.S. 154 , 158 n. 9, 91 S.Ct. 720 , 27 L.Ed.2d 749 (1971) (appellants did not appeal on this ground); Stambler v. Dillon, 288 F.Supp. 646, 649 (S.D.N.Y.1968); see also United States v. Clark, 249 F.Supp. 720, 727-728 (S.D.Ala.1965) (three-judge court) (decided prior to Pierson v. Ray, supra).

As to the opinions referred to by the majority as representative of the other *1103 side of the issue, not one of the cited cases actually discusses the distinction between an action for damages and compulsory process directed at future conduct. Each opinion either does not disclose whether a claim for injunctive relief was pleaded, 7 or deals only with a claim for money damages, 8 or denies injunctive relief because of the inadequacy of the factual allegations, 9 or simply fails to recognize the difference between the two kinds of relief. 10

The authority of Cooper v. Hutchinson, supra, has been in no way impaired by Pierson v. Ray, supra, and none of the respectable body of thoughtful opinion to which the majority makes reference reflects in the slightest upon its soundness. If we were to hold that judges are immune from coercive civil process as well as from liability for money damages we would be embarking upon unchartered waters indeed. It is true that the occasions on which it has been found necessary to subject judges to coercive civil process have been relatively infrequent. The infrequency, however, must be considered against the availability of last resorts such as those considered by the Supreme Court in In re Herndon, supra, and Deen v. Hickman, supra. If a new doctrine were announced, immunizing judges from coercive civil process, the occasions of contumacy might dramatically increase. I can think of no countervailing gain from the invention of a new immunity doctrine which would justify this risk.

One might make the contention that state court judges should be free from coercive civil process issued by any court except the Supreme Court, and that such a distinction would suffice to guard against contumacy since the Supreme Court would remain free to act. I would ask why any such distinction should be made, since all of the article III courts exercise the judicial power of the United States to the extent of their respective jurisdictions. Indeed I would see any such distinction as positively harmful, since it is perfectly clear that with a population of over 200 million the Supreme Court alone simply is unable to exercise effective appellate jurisdiction over the state judiciary and must for the most part leave the vindication of federally protected rights in the hands of the other article III courts. Those courts protect such rights from state interference at present chiefly through their habeas corpus and Civil Rights Act jurisdiction. 28 U.S.C. § 2254 , § 1343. It has been suggested that Congress should route appeals in state cases through an intermediate article III court. See Hufstedler, Comity and The Constitution: The Changing Role of The Federal Judiciary, 47 N.Y.U.L.Rev. 841 (1972). The trend toward a caseload situation where that may be essential seems clear. This is hardly the time to *1104 invent new doctrines of immunity which would complicate the performance of additional duties by the lower federal courts with respect to state court litigation.

I would advise the district court that it was right when it rejected the defense of judicial immunity in the context of a Civil Rights Act complaint seeking injunctive relief.

MCLAUGHLIN, Circuit Judge, concurs in this opinion.

ALDISERT, Circuit Judge

(concurring).

Judge Gibbons’ scholarly defense of his position compels this brief response. I find nothing in his analysis which refutes the basic rationale expressed by Chief Justice Warren in Pierson v. Ray, 386 U.S. 547, 554 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967): “This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the 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, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349 , note, at 350 [of 80 U.S. (13 Wall.)].) It is a judge’s duty to decide all eases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”

This reasoning seems to be applicable to injunctive actions against state judges predicated on the performance of judicial acts. Inherent in the injunction process are the necessary sanctions available to insure enforcement of decrees. Because these sanctions take the form of imprisonment or fine for contempt, I perceive this “intimidation” to be as pernicious as the threat of an adverse money judgment.

Moreover, I am not willing to accept the characterization that Judge Gibbons’ view is “settled law in this circuit.” I suggest that his approach is a formidable effort to engraft an exception to the landmark case of Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966).

In any event, any notion that the law is settled in this field should have been completely dispelled when the Supreme Court granted certiorari on April 2, 1973, in Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972).

. See also, Jaffke v. Dunham, 352 U.S. 280, 281 , 77 S.Ct. 307 , 1 L.Ed.2d 314 (1957) (per curiam); Brown v. Allen, 344 U.S. 443, 459 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953); J. E. Riley Co. v. Commissioner, 311 U.S. 55, 59 , 61 S.Ct. 95 , 85 L.Ed. 36 (1940); United States v. American Ry. Express Co., 265 U.S. 425, 435 , 44 S.Ct. 560 , 68 L.Ed. 1087 (1924); Frey & Son v. Cudahy Packing Co., 256 U.S. 208, 210 , 41 S.Ct. 451 , 65 L.Ed. 892 (1921).

. See Dombrowski v. Pfister, 380 U.S. 479 , 484 n. 2, 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965); Stefanelli v. Minard, 342 U.S. 117 , 124 n. 12, 72 S.Ct. 118 , 96 L.Ed. 138 (1951).

. In Pierson v. Ray, supra, Chief Justice Warren did not say whether the common law referred to was state or federal. Justice Frankfurter in Tenney v. Brandhove, supra, seems to assume that the federal court must look to the common law of the state in question. See 341 U.S. at 375 , 71 S.Ct. 783 . No Pennsylvania case has ever suggested that judicial immunity includes immunity from coercive civil process.

. Shortly after the issue of state sovereignty became heated in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 , 1 L.Ed. 440 (1793); and before Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 , 4 L.Ed. 97 (1816), and Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 , 5 L.Ed. 257 (1821), state judges were subjected to the compulsory process of the federal courts. As early as 1795, Pennsylvania State Court judges were subpoenaed to testify in a trial in the circuit court, Pennsylvania District. They did not appear, and the United States Attorney applied for a body attachment. The attachment did not issue, but tlie judges at circuit withheld the arrest as a matter of grace. Mr. Justice Paterson, sitting as a circuit justice, had this to say:

“We pay no respect to persons. The law operates equally upon all; the high and low, the rich and poor. If we issue a subpoena to a justice or a judge, and it is not obeyed, we should be more strict in our proceedings against such characters, than against others, whose office did not so strongly point out their duty.” United States v. Caldwell, 2 U.S. (2 Dall.) 333 , 1 L.Ed. 404 , 25 Fed.Cas. 238 (1795).

. In fact, the English judges could be made to account for their actions before the King. In 1607, the Court of the Star Chamber stated that:

“ [I]t appears by . precedent and chronicle, that the King did ex-amino the corruption of his Judges before himself in the Parliament, and not by force of any commission.” Floyd v. Barker, 12 Co.Rep. 23, 26, 77 Eng.Rep. 1305, 1308 (1607).

. The Chancellor’s interference with proceedings in other courts was not limited to the law courts. Under English law the Ecclesiastical courts had jurisdiction to dispose of a decedent’s personalty. See 2 R. Roper, Treatise on the Law of Legacies at 1791 et seq. (1847). However, this jurisdiction did not extend to assets of an estate which were subject to a trust. Mr. Justice Story notes that:

“[I]f the Spiritual Courts attempt to enforce the payment of a legacy which involves a trust, a Court of Equity will award an injunction in order to protect its own exclusive jurisdiction.” (Footnotes omitted). 1 J. Story, Equity Jurisprudence at 601 (13th ed. 1886).

. Cade v. Carpenter, 367 F.2d 572 (5th Cir. 1966) (per curiam) Compare the above with United States v. McLeod, supra, decided in the same court.

. Robinson v. McCorkle, 462 F.2d 111 (3d Cir. 1972); Rhodes v. Houston, 309 F.2d 959 (8th Cir. 1962) (per curiam), aff’g 202 F.Supp. 624 (D.Neb.1962), cert. denied, 383 U.S. 971 , 86 S.Ct. 1282 , 16 L.Ed. 2d 311 (1966), 372 U.S. 909 , 83 S.Ct. 724 , 9 L.Ed.2d 719 (1963); Gay v. Heller, 252 F.2d 313 (5th Cir. 1958); Kenney v. Fox, 232 F.2d 288 (6th Cir.), cert. denied, 352 U.S. 855 , 77 S.Ct. 84 , 1 L.Ed.2d 66 (1956).

. Gaito v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970), involved a claim for money damages and the immunity discussion refers to this claim. MacKay v. Nesbett, 412 F.2d 846 (9th Cir. 1969) (per curiam), aff’g 285 F.Supp. 498 (D.Alaska 1968), cert. denied 396 U.S. 960 , 90 S.Ct. 435 , 24 L.Ed.2d 425 (1969), turns not on immunity but on scope of review in a disbarment proceeding.

. Tate v. Arnold, 223 F.2d 782 (8th Cir. 1955). The ease involves a claim both for money damages and for injunctive relief. The opinion makes no distinction between the two claims but, significantly, explicitly recognizes Cooper v. Hutchinson, supra, as contrary authority, 223 F.2d at 785 .