Cynthia A. Forrester v. Judge Howard Lee White

POSNER, Circuit Judge,

dissenting.

Section 1 of the Civil Rights Act of 1871 (now 42 U.S.C. § 1983 ) creates a federal tort remedy against persons who violate federal rights under color of state law. The statute does not mention immunity or other defenses to liability, but this just shows (as is anyway obvious) that the statute was not intended to be a complete code of tort liability. Procedures, remedies, defenses have to be grafted on; whether one calls the process of completing the statute interpretation, or common law elaboration, *659 or policymaking (see Smith v. Wade, 461 U.S. 30, 93 , 103 S.Ct. 1625,1659 , 75 L.Ed.2d 632 (1983) (O’Connor, J., dissenting)), the objective is the same — to integrate the statute into a system of liability and remedies in which due regard is paid to all relevant considerations, including the impact of liability on the performance of essential public functions.

Today my brethren hold that a state judge can never be made to pay damages for firing a probation officer in violation of the officer’s constitutional rights; the judge’s immunity is absolute. My brethren emphasize that a judge exposed to the threat of being sued for damages may hesitate to fire an incompetent probation officer, and that the public will suffer from his hesitation. Most members of a judge’s staff serve for a short time (this is true of most law clerks), do not perform essential services, or lack discretionary authority. So in the generality of cases the harm to the public if a judge is inhibited by fear of being sued from firing an incompetent staff member is clearly not great enough to justify giving him absolute immunity from suit. But in the case of probation officers and other judicial or quasi-judicial employees who are selected by judges— such as (in the federal system) magistrates and bankruptcy judges — the harm to the public if a judge is led to retain an unqualified employee by fear of being sued could be very serious.

Forceful as this point is, it does not justify giving judges absolute immunity from liability for firing a probation officer in violation of the Constitution, even when the point is combined with another that my brethren but hint at. There are administrative and judicial remedies, particularly under Title VII of the Civil Rights Act of 1964, as amended in 1972 to cover public employers, see 42 U.S.C. §§ 2000e(a), (b), 2000e-2(a), for some forms of employment discrimination by such employers, so that granting a state judge absolute immunity for such discrimination would not leave his victims completely without remedy. The second point is incomplete; the probation officer would have no remedy if he were fired for an unconstitutional reason for which Title VII or other statutes provided no remedy against the employing agency. The deeper problem is that both points are applicable to a wide range of official conduct that has been held not to be protected by absolute immunity: a police chief’s decision to fire a police lieutenant, for example.

Indeed the reasoning of the majority opinion extends to every consequential employment decision by every government official. The opinion cannot logically be confined to firing, although it carefully avoids any reference to failing or refusing to hire. Hiring an unqualified person because of fear that one might otherwise be sued for discrimination is no different from firing an unqualified person because of the same fear. It would be a curious notion that a judge must hire probation officers without regard to their race or sex but is free to fire them on the basis of their race or sex. The majority opinion cannot logically be confined to the hiring and firing of probation officers or other judicial or quasi-judicial personnel, either. Incompetent employees of other branches of government besides the judicial can do just as much harm to the public; and it does not follow that because a probation officer can be said to perform quasi-judicial acts, firing that officer is a judicial act, even if it is done by a judge. Finally, the emphasis that my brethren place on the confidential nature of the relationship between judge and probation officer would be relevant only if the judge were charged with having fired the probation officer on political grounds. See, e.g., Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.1985). Even then it might very well not be determinative. See, e.g., Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980) (assistant public defender).

In a society that prides itself on subjecting even its highest officials to the restraints of law (see, e.g., Butz v. Economou, 438 U.S. 478, 506 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978)), a position historically novel and still far from universal, the grant of absolute immunity from civil liability— *660 immunity, that is to say, from such liability even for deliberate wrongdoing — must be confined to situations where such immunity is not merely convenient but essential. Id. at 507 , 98 S.Ct. at 2911 . And in deciding whether this demanding test has been met federal judges must be sensitive to the accusation of arbitrarily exempting themselves from liabilities which they have imposed in the name of the Constitution on other public officials, state and federal. The present case concerns state judges sued under section 1983 but its logic applies with equal force to federal judges sued directly under the Constitution. It thus engenders tension with Davis v. Passman, 442 U.S. 228 , 99 S.Ct. 2264 , 60 L.Ed.2d 846 (1979). The Supreme Court held in that case that a Congressman could be sued for damages directly under the Constitution for firing his deputy administrative assistant because she was a woman. Although the Court reserved certain immunity questions, it said that “if petitioner is able to prevail on the merits, she should be able to redress her injury in damages.” Id. at 248 , 99 S.Ct. at 2278 . The same thing can be said about a probation officer fired by a judge. It is true that the District of Columbia Circuit held recently that the Constitution’s “speech and debate clause” (Art. I, § 6) immunizes members of Congress from liability in damages for firing an employee whose “duties are an integral part of the legislative process.” Browning v. Clerk, 789 F.2d 923, 928 (D.C.Cir.1986). But even if this holding is correct, it is correct in virtue of an explicit constitutional provision that has no counterpart so far as judges are concerned; and we are not authorized to repair the oversights of the Constitution’s framers.

As my brethren recognize, the purpose of absolute immunity is not to make life easy for officials of any branch of government; it is not to foster judicial peace of mind. We must not allow our vocationally sharpened sensitivity to the difficulties of performing judicial duties in this contentious era to influence us to immunize ourselves and other judges from the legal hazards of public office. The only tenable rationale of absolute immunity is the need to protect officials from being seriously deflected from the effective performance of their duties. Absolute immunity is strong medicine, justified only when the danger of such deflection is very great. Analysis thus requires careful attention to the tradeoffs involved in a judgment to grant absolute immunity. A lawsuit imposes costs even on a prevailing defendant, who generally cannot recover his attorney’s fees; in addition some defendants who ought to win their suits lose them simply because the judicial system like most other human institutions makes mistakes. So every individual has an incentive to avoid conduct that will get him sued; but the conduct he avoids may be conduct that promotes the welfare of society, and if so the incentive will have socially costly consequences. These costs have to be balanced against those of letting wrongdoers get off scot-free. Ordinarily the latter costs are thought greater but not when (1) the nature of the potential defendant’s job is such that he can be expected to be sued constantly, (2) most such suits will be frivolous, (3) the defendant can reduce the probability of being sued by taking measures to avoid exposure to suit, (4) those measures are, however, socially costly because of the nature of the defendant’s work, and (5) the victims of his wrongdoing have other remedies.

These conditions coalesce in the case of a judge sued for judicial rulings, or a prosecutor for decisions whether to prosecute, or a legislator for legislation — and judges, prosecutors, and legislators, and officials acting in these capacities though not called such (including ad hoc judges, such as jurors), are (apart from the President of the United States) the principal officials who enjoy absolute immunity from federal civil liability. See, e.g., Cleavinger v. Saxner, — U.S. —, 106 S.Ct. 496, 500 , 88 L.Ed.2d 507 (1985); Mitchell v. Forsyth, — U.S. —, 105 S.Ct. 2806, 2812 , 86 L.Ed.2d 411 (1985); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 731-36 , 100 S.Ct. 1967, 1974-77 , 64 L.Ed.2d 641 *661 (1980). Witnesses are absolutely immune for similar reasons. The absolute immunity of judges from civil liability for their rulings has been an established principle of Anglo-American jurisprudence for hundreds of years. See, e.g., Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347-54 , 20 L.Ed. 646 (1872), and cases cited there; Note, Pulliam v. Allen: Delineating the Immunity of Judges From Prospective Relief, 34 Cath. U.L.Rev. 829, 838-43 (1985). It was held applicable to suits under section 1983 in Pierson v. Ray, 386 U.S. 547, 554-55 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288 (1967). But there is nothing in this history to suggest that judicial immunity extends beyond judicial rulings.

The business of a judge is to rule against people. Every contested case has a loser, often a sore one. And the class of litigious people is of course overrepresented in litigation, meaning that the loser of a lawsuit is more likely (if permitted) to vent his anger by bringing another lawsuit than would be the average loser of a nonlegal contest. A judge of this court votes in more than 200 cases a year, and every (nondissenting) vote produces a loser. A significant fraction of the losers would sue the judges if they could do so (some sue us despite our absolute immunity). The vast majority of such suits would be frivolous, for they would be efforts to attack a final judgment collaterally by attacking the judge, a mode of collateral attack that would not be tolerated even if judges were not completely immune from being sued for damages for their judicial rulings. Nevertheless these suits would be costly in the aggregate and could lead to measures of avoidance of various sorts. Some people would decline to become judges, though well qualified. Others would pull their punches in cases where one of the litigants seemed particularly irate or contentious. Others would try to duck cases involving such litigants. For none of these techniques of avoidance would there be effective remedies. People who are scared of being sued cannot be forced to serve as judges. Nor will taxpayers raise judicial salaries high enough to compensate judges for running the grave litigation risks they would run in having to judge without immunity from liability for their rulings. And because judges exercise great discretion (despite the pious insistence that ours is a government of laws not men), judicial timidity is hard to prove and even harder to punish. Many judges, including all federal judges, are beyond the power of effective correction by the political branches of government and thus can pull their punches to their hearts’ content. Finally, the victim of a wrongful judicial ruling ordinarily has a remedy by way of appeal to a higher court.

The case for granting judges absolute immunity for their judicial rulings is thus a powerful one, but one not easily transposed to judges’ decisions on staffing their chambers. Consider the compact statement of the rationale for absolute judicial immunity in Pierson v. Ray, supra: “It is a judge’s duty to decide all cases 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.” 386 U.S. at 554 , 87 S.Ct. at 1218 . Notice how the entire discussion is geared to the judge’s role in making judicial decisions. If there is a case for absolute immunity from civil liability for judges’ employment decisions, it is a completely different case from the traditional one. The decision today breaks new ground; and novelty is not always a virtue in law.

Absolute immunity as traditionally conceived (I mean the judge-made doctrine, not the absolute immunity that federal legislators enjoy by virtue of the speech and debate clause in Article I) is limited to the situation where an official’s position requires that he be constantly hurting members of the public — so that if he is not immune he will be a constant target of *662 litigation — and where in addition massive litigation or its threat is likely to distort his official behavior, to the serious detriment of the public. This describes the position of judges in rendering judicial decisions and of prosecutors in prosecuting. But no one thinks that a state or federal district attorney should be absolutely immune from liability for discriminating in the hiring or firing of assistant district attorneys; and why should there be a different rule for judges who discriminate in hiring or firing their subordinates? A district attorney may be responsible for initiating hundreds or even thousands of prosecutions in the course of a year, and every one would be a potential lawsuit against him if it were not for absolute immunity. Prosecutors enjoy a broad, essentially unreviewable discretion in deciding whom to prosecute, while judges enjoy a broad discretion, too — discretion to decide cases plausibly for either party. Many judges (all federal judges) are in addition protected from removal by the other branches of government. If either type of official is made timid by fear of being sued and his performance suffers as a result, the public will not be the wiser; even if it is, it may not be able to do anything to whip the official back into line. But a prosecutor or judge is no more likely to be sued for employment discrimination than any other employer, public or private. Cf. Mitchell v. Forsyth, supra, 105 S.Ct. at 2813 . He does not face an avalanche of lawsuits if absolute immunity is denied; and his employment decisions are, if not fully subject to outside evaluations, less inscrutable than prosecutorial and adjudicative decisions, or at least no more inscrutable than the employment decisions of other officials.

It is true that so far as potential exposure to suit by members of the public is concerned, a policeman is in much the same position as a judge or prosecutor yet enjoys no absolute immunity from civil damage actions. There are reasons for the difference in treatment. One, which is merely realistic, is that a policeman rarely has sufficient assets to be worth suing (of course this is also true of many assistant district attorneys), unless he is indemnified by his employer — in which event the suit is unlikely to have much impact on his performance of his duties. The threat of suit is less likely to affect the performance of his duties for another reason as well: he has less discretion than a judge or prosecutor. He is also more amenable to discipline and control by his superiors if he seems to be flagging. Finally, unless policemen can be sued for using excessive force or for false arrest, many victims of these excesses will be without any remedy. In contrast, judicial decisions are subject to appeal and prosecutorial decisions are subject to correction by grand juries, petit juries, trial judges, and appellate judges.

Granted, a public employee who has been fired may have alternative remedies to a suit for damages, a fact that might seem to make him more like the loser of a lawsuit than like the victim of police brutality. A probation officer fired on grounds of race or sex has no right of appeal but does have administrative and judicial remedies against the employing agency (i.e., the court rather than the judge). These remedies are limited, most importantly in allowing only equitable relief: the fired employee can get reinstatement with back pay but cannot get common law damages. But the loser of a lawsuit cannot get common law damages either; he can only get a reversal on appeal. In any event, the absolute immunity of judges cannot be made to depend on the accident that a legislature has created an alternative remedy, for it is not something that distinguishes a judge from any other public employer.

If I did not have absolute immunity for my judicial rulings I would be enveloped in a cloud of litigation that my estate would still be defending long after my death. But I have never thought I had absolute immunity for employment decisions, including decisions on bankruptcy judges in which I participate as a member of the Seventh Circuit’s Judicial Council. Judges do not need such an immunity in order to perform their duties effectively. Without it there may be some diminution in our *663 effectiveness but not enough to justify absolute immunity if I am right that it can be granted consistently with our traditions only when the circumstances are compelling. Some evidence that we need not fear a flood of lawsuits if the district court’s decision is affirmed is that this appears to be the first case in which a judge’s absolute immunity from damage liability for employment discrimination has even been argued at the federal appellate level; it was not argued in Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541, 545-46 (8th Cir.1984), where the Eighth Circuit recently upheld a damage judgment against a state judge for removing a hearing officer because of her sex. That case might have been decided differently if a litigant had sued the judge for having fired the hearing officer, for in relation to litigants the employment decisions of judges may be the sort of judicial act to which absolute immunity attaches; but in relation to the employee or job applicant, employment discrimination by a judge does not engage the policy behind the doctrine of absolute judicial immunity.

The failure to distinguish carefully among the different kinds of acts that judges perform is, indeed, the fatal weakness in the majority opinion. Carried to its logical extreme, the opinion would attach absolute immunity to any major decision made by a judge within the scope of his lawful powers. The proper question is whether the decision was made in the judge’s judicial capacity. Judges have both judicial and executive functions. Hiring and firing subordinates are executive functions. The basic distinction is well established in the cases. See Stump v. Sparkman, 435 U.S. 349, 362 , 98 S.Ct. 1099,1107 , 55 L.Ed.2d 331 (1978); Lopez v. Vanderwater, 620 F.2d 1229, 1233-35 (7th Cir.1980); Harris v. Deveaux, 780 F.2d 911, 914-16 (11th Cir.1986); Dykes v. Hosemann, 776 F.2d 942 , 945 (11th Cir.1985) (en banc) (per curiam); Holloway v. Walker, 765 F.2d 517, 522-25 (5th Cir.1985); Richardson v. Koshiba, 693 F.2d 911, 913-15 (9th Cir. 1982); Note, What Constitutes a Judicial Act for Purposes of Judicial Immunity?, 53 Fordham L.Rev. 1503 (1985). As the Ninth Circuit said in Gregory v. Thompson, 500 F.2d 59, 65 (9th Cir.1974), where the defendant, a judge, had forcibly expelled the plaintiff from the judge’s courtroom, “Judge Thompson’s choice to perform an act similar to that normally performed by a sheriff or bailiff should not result in his receiving absolute immunity for this act simply because he was a judge at the time.” See also Ammons v. Baldwin, 705 F.2d 1445,1448 (5th Cir.1983). Or as we said in both Lowe v. Letsinger, 772 F.2d 308, 311-12 (7th Cir.1985), and Glick v. Gutbrod, 782 F.2d 754, 756 (7th Cir.1986) (per curiam), “The doctrine [of absolute immunity] applies to damage claims, ... but not to ministerial or administrative acts.”

I realize that the line between the judicial and the administrative is not hard and fast; the rulings that a judge makes in the course of “administering” a school system or prison system under a consent decree are entitled to absolute immunity. Holloway v. Walker, supra, 765 F.2d at 525 . I recognize the hint — no more — in Richardson v. Koshiba, supra, 693 F.2d at 914 n. 10, that the classification of the act is determined by the office of the actor rather than the nature of the act. I realize that the cases I have cited are not factually similar to the present one — except for one, but as it is a decision of the Supreme Court, though an old one, we should pay particular attention to it. In Ex Parte Virginia, 100 U.S. (10 Otto) 339, 25 L.Ed. 676 (1880), a county judge was indicted for racial discrimination in selecting jurors to serve in the county’s courts. To the judge’s argument that he was immune from such a prosecution the Court answered in words applicable to the present case, “Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge____ That the jurors are *664 selected for a court makes no difference. So are courtcriers, tipstaves, sheriffs, etc.,” id. at 348 — and probation officers. This was said in the context of a criminal prosecution but it would be surprising if a suit for civil damages brought by the prospective jurors whom the judge had discriminated against would have been deemed barred by the doctrine of absolute immunity-

My brethren would give judges more protection than other officials not because of the acts that they do which are distinctively judicial (for I contend that firing a subordinate, even a judicial subordinate, is not a distinctively judicial act) but just because they are judges. The same racial or sexual or age discrimination in firing a probation officer is to be immunized from civil liability if the person doing the firing is a judge, and is not to be immunized if the person is another probation officer, or some other executive officer, or a judicial administrator, or in short anyone who does not himself perform — though of course not in the act of hiring or firing — a judicial function.

So I think my brethren are wrong to grant Judge White absolute immunity, and I would reverse the judgment of the district court. But I also think that the protection against suit that the majority opinion creates is illusory. The majority is so intent on writing a narrow opinion that it leaves the scope of its new doctrine of absolute immunity entirely uncertain. Can it really be that the doctrine is to be limited to the firing of probation officers in Illinois juvenile courts? The logic of the opinion cuts a much broader swath, but judges cannot be (perhaps should not be) forced to apply principles in their full logical reach. The majority calls for “a critical evaluation of the concerns underlying the defense” of absolute immunity in each case; it declines to express any “opinion on other decisions relating to Judge White’s staff or even to probation officers in a different court system, because it must be determined in each case that the grant of immunity advances the policies behind it.” It is right for judges to be cautious when they set sail on uncharted seas, but in the field of immunities this may be a reason for not leaving port in the first place. The absolute immunity for a judge’s legal rulings is about as definite a rule as we have in our legal system, and the absolute immunity that the court creates today is about as indefinite, which robs the principle of its value to the judges and to the public. Absolute immunity provides real security only if the scope of the immunity is well defined. Under the court’s approach the process of definition will be protracted and may never yield a clear rule on which employees or job applicants may sue which judges and which may not, and for what. We shall still have to buy liability insurance.