“It is a well established rule that where a judge’s absolute immunity would protect him from liability for the performance of particular acts, mere allegations that he performed those acts pursuant to a bribe or conspiracy will not be sufficient to avoid the immunity.”
How later courts described this case
- “It is a well established rule that where a judge’s absolute immunity would protect him from liability for the performance of particular acts, mere allegations that he performed those acts pursuant to a bribe or conspiracy will not be sufficient to avoid the immunity.”
- discussing a district court’s decision to vacate an earlier opinion to consider a § 1983 complaint for abuse of process
- state court "is clearly a branch of the state and as such is protected from suit by the Eleventh Amendment"
Written by the judges who cited it.
The opinion
COLE, Circuit Judge,
concurring in part and dissenting in part.
I concur in the lead opinion with regard to each issue except for the grant of absolute immunity to the special prosecutors; on that issue only, I respectfully dissent.
I find the district court’s rationale for granting absolute immunity, upon which the lead opinion relies, to be unpersuasive.
Eldridge asserts that Tennessee Code § 8-7-401 does not provide for any immunities to private legal counsel appointed pursuant to this statute, and argues that the legislative omission of any mention of immunities is not an error, but an intentional distinction between privately employed attorneys permitted to participate in criminal prosecutions at the District Attorney’s discretion, and individuals appointed and employed by the State pursuant to T.C.A. § 8-7-106.
In support of this proposition, Eldridge quotes from § 8-7-106, which states that a district attorney pro tem, appointed in the absence of a District Attorney, shall be entitled to the same privileges and emoluments. Thus, Eldridge juxtaposes these two statutory provisions to demonstrate that the Tennessee legislature would have provided a similar entitlement to private counsel under § 8-7-401 had immunity for such attorneys been desired. *1024 The district court stated that § 8-7-106, “does not grant or refer to any immunity, only privileges of office.” This is unpersuasive, however, because, in my view, absolute immunity would properly be considered a privilege of office. The district court cites no authority to the contrary.
In addition, the district court asserted that under Martinez v. California, 444 U.S. 277 , 284 n. 8, 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), state law does not control resolution of federal § 1983 actions. This appears to be a fair reading of the implication of Martinez . However, this factor cuts both ways. If state law does not control, then the fact that the private attorneys were appointed pursuant to a state statute also cannot control — but the district court heavily relied on this factor.
I am unaware of any instance in which a federal court has granted absolute immunity to private attorneys acting as prosecutors in a criminal case while simultaneously representing the crime victim civilly. It is true that this Court has taken a functional approach to absolute immunity, assessing the “nature of the function performed, not the identity of the actor who performed it” in determining whether to grant absolute immunity. See Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002). Using this approach, we have concluded that a prosecutor is protected “in connection with his duties in functioning as a prosecutor.” Id.
Applying the functional approach, the district court stated that the private attorneys “acted as prosecutors in representing the state in a criminal case, arguing pretrial and trial matters. These are the inherent functions of a prosecutor and these functions were in the context of a state criminal trial.” The district court concluded, “Thus, applying the function analysis ... the private Defendants were state prosecutors and are also entitled to absolute immunity for their work on Plaintiffs criminal trial.”
Were the attorneys in question functioning solely as special prosecutors, this analysis would surely be correct. The problem here, however, is that these functions were not merely “in the context of a state criminal trial,” but also in the context of a private civil trial. The Tennessee Court of Criminal Appeals noted a number of important considerations in this regard that are relevant to the conflict of interest in this case. “The responsibility of a public prosecutor differs from that of the usual advocate in that it is the public prosecutor’s duty to seek justice, not merely to convict.” State v. Eldridge, 951 S.W.2d 775, 781 (Tenn.Cr.App.1997). At the same time, “[a]s zealous advocates representing the victim in the civil case, counsel would best serve the victim by securing a criminal conviction.” Id. at 783 , 951 S.W.2d 775 . Among other troubling issues, there was an unresolved factual dispute regarding whether the special prosecutors had offered to settle both the civil and criminal proceedings for a sum certain, and it was apparent that payment of a sum of money for a civil settlement would have resulted in a favorable recommendation by the special prosecutors in the criminal matter. See id. “[T]he special prosecutors certainly had a direct interest in the outcome.” Id.
Because of these conflicts, I do not think it can fairly be said that the private attorneys were at all times functioning as state prosecutors, because all of their actions in the context of the criminal trial were inextricably intertwined with their civil functions. Accordingly, the functions of prosecutor and zealous civil advocate are inseparable here. Thus, the district court’s functional analysis was incomplete.
I would find that the private attorneys are not entitled to absolute immunity be *1025 cause they functioned simultaneously as both prosecutors and private civil advocates, and would remand this issue to the district court to determine in the first instance whether these attorneys were entitled to qualified immunity.