finding that “the district court’s partial denial of [the defendant’s] motion to dismiss ... [the] complaint” was not a final order
How later courts described this case
- finding that “the district court’s partial denial of [the defendant’s] motion to dismiss ... [the] complaint” was not a final order
- explaining that the act of committing a sexual assault does not constitute a judicial act under any set of circumstances
- recognizing that “a defendant in a section 1983 case has an absolute right immediately to appeal a denial of immunity”
- “Yielding to an unruly libido is not the exercise of judicial power, or somehow like or related to the performance of judicial duties.... A judge's long study of the law does not proceed from sexual appetites, even though we may sometimes say that ’the law is a jealous mistress.’ ”
Written by the judges who cited it.
The opinion
MERRITT, Chief Judge,
concurring.
I concur with the Court’s opinion that there is no “judicial immunity” from civil liability in this § 1983 ease. In United States v. Lanier, 73 F.3d 1380 (6th Cir.), cert. granted, — U.S. -, 116 S.Ct. 2522 , 135 L.Ed.2d 1047 (1996), the criminal analogue to this civil case, we held that Lanier’s conduct, the same conduct complained of here, does not constitute a federal crime under 18 U.S.C. § 242 .
In that ease, the government argued that Lanier’s sexual assaults were made as a judicial official “under color of state law,” an explicit requirement or element of a § 242 offense. In order for Lanier to be found criminally liable under § 242, “state action” must be present. A § 242 act “under color of state law” must be an act “under pretense of law,” for “the acts of officers in the ambit of their personal pursuits are plainly excluded,” Screws v. United States, 325 U.S. 91, 111 , 65 S.Ct. 1031, 1040 , 89 L.Ed. 1495 (1945) (emphasis added). It must be a “misuse of power ... made possible only because the wrongdoer is clothed with the authority of law.” United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043 , 85 L.Ed. 1368 (1941). The sexual conduct here was singu *444 larly “personal” and obviously not “clothed with the authority of law.”
Had we agreed in the criminal case that Lanier was acting “clothed with the authority of state law” or “under pretense of law” in sexually assaulting women, we might be driven in this civil case to find in favor of Lanier’s plea of judicial immunity. It would seem inconsistent to follow the government and say that Lanier was performing a judicial function under state law for purposes of criminal liability and then turn around and deny Lanier judicial immunity on the ground that he was not performing a judicial function.
The only consistent, sensible approach in this area of law is to say what seems obvious: Sexual assaults have nothing to do with the appearance of carrying out authorized judicial duties, exercising judicial power or performing the function of judging. Yielding to an unruly libido is not the exercise of judicial power, or somehow like or related to the performance of judicial duties. A ruling to the contrary would create a legal fiction beyond the pale of reason. Even for Dr. Freud, “carnal knowledge” is not really “knowledge,” only a metaphor. A judge’s long study of the law does not proceed from sexual appetites, even though we may sometimes say that “the law is a jealous mistress.” To label Lanier’s personal sexual proclivities as “state action” or judicial acts “under color of law” or “clothed with the authority of law” makes an interesting literary figure of speech. But that is all it is — a figure of speech, a metaphor. There may be no judicial immunity for such acts in the real world.