Howard v. Drapkin

DANIELSON, J., Concurring and Dissenting.

I concur in the result reached in the foregoing decision, but emphatically dissent and disassociate myself from the reasoning and the holding of the majority opinion which would create, by judicial legislation, a “quasi-judicial immunity” in persons whom it vaguely designates as “neutral third party participants in the judicial process.”

In the first place, the majority simply designates those upon whom it would confer this newly created quasi-judicial immunity as “neutral,” and *865 thereafter assumes that they are, in fact, neutral. Whether or not they are truly neutral presents a very substantial question of fact, one which would not have to be decided if this appeal were decided under existing law. The litigation privilege of Civil Code section 47, subdivision 2 (hereafter section 47(2)) provides a broad privilege which will protect participants in litigation from the consequences of their communications. Thus, the immunity which the majority would create serves no recognizable useful purpose.

The Majority’s Holding Is Judicial Legislation

The majority frankly and honestly acknowledges that defendant has asked this court to “go beyond” California’s heretofore limited application of immunity and apply it to others (1) appointed by courts for their expertise, and (2) persons whose work product comes into the judicial process to be used by the court, even though they were not court appointed, such as social workers. The majority has granted that request. The majority holds “that absolute quasi-judicial immunity is properly extended to neutral third party participants in the judicial process.” But who is doing the extending? The answer is: This court. However, the majority does not identify, nor can they, their constitutional authority for “going beyond” the Constitution and the laws of the State of California, and “extending” immunity to such third parties. By that act of “extending” they have created a new immunity, a new exemption from accountability, which has not existed in the laws of this state. To borrow the words of our Supreme Court in Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 416 [ 267 Cal.Rptr. 589 , 787 P.2d 996 ], this is “nothing more than judicial legislation.”

The People of California, in establishing our Constitution, wisely followed the example of the United States and separated governmental powers into three branches. It is well that we remember and honor that fact. The legislative power remains “vested in the California Legislature” (art. IV, § 1); the executive power remains “vested in the Governor”; (art. V, § 1); and the judicial power is “vested in the [Courts].” (Art. VI, § 1.) Our courts do not have jurisdiction to legislate and have no right either to create new causes of action or to abolish those which are already established. Those are legislative functions. (Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 726-727 [ 192 P.2d 916 ].)

The Majority’s Holding Is Gratuitous

The majority’s creation of a new quasi-judicial immunity is wholly gratuitous. In deciding the central issue presented by this appeal the court could have, and should have, decided it on the basis of existing law. The litigation privilege of section 47(2) disposes of that issue fully, completely, and *866 quickly; and that disposition is based upon law when it was enacted by the people through their Legislature more than 100 years ago and which has been refined and interpreted many times by our courts. The majority did, in fact, utilize section 47(2) as an alternate basis for its decision, after first utilizing 18 pages of its opinion in its effort to justify and to create its new quasi-judicial immunity. The disposition under section 47(2) is correct and, standing alone, fully supports the result reached. This new judicial legislation is redundant and unnecessary.

Judicial Immunity Is Very Limited in Scope

The majority opinion presents an extensive overview of judicial immunity. In studying that overview it must be noted and then remembered that judicial immunity, even forjudges, is limited to those judicial acts which are adjudicatory in nature, i.e., decisionmaking, dispositive, and the immunity does not otherwise extend to acts which simply happen to be done by judges. It is the function of adjudication of an issue, the decisionmaking function, which requires and is the basis for judicial immunity. The decision of the United States Supreme Court in Forrester v. White (1988) 484 U.S. 219 [ 98 L.Ed.2d 555 , 108 S.Ct. 538 ], is controlling on that point; and it provides no basis for extending such immunity to the nonadjudicatory actions of judges, nor of their adjuncts. A fortiori, judicial immunity should not extend to persons who are neither judges nor their adjuncts, but only third party participants in litigation, i.e., witnesses.

It is important that this limitation be kept in mind, since the effect of the majority opinion is to extend judicial immunity, termed “quasi-judicial immunity,” to persons who do not adjudicate but who are, at most, “neutral third-party participants in the judicial process.”

The majority’s scholarly review of judicial immunity contains no valid argument to justify extending such immunity to nonjudicial persons who do not perform an adjudicatory function.

The Majority’s Reasoning Does Not Support Its Holding

The majority discourses at length on their perceived need for creating their new quasi-judicial immunity. The examples they cite as demonstrating a need for such immunity do not support their conclusion. Where immunity is granted to the categories of persons which they mention, that immunity is based upon the function such person is performing at the particular time, not on his or her calling or profession. As pointed out, above, judicial immunity extends to the person exercising a judicial function which is adjudicatory, decisionmaking, in nature. Even the act of a judge, in the *867 performance of his duties as a judge, which is not adjudicatory in nature, is not clothed with judicial immunity. (Forrester v. White, supra, 484 U.S. 219 .) The many categories of professionals referred to by the majority are granted immunity for their acts as adjuncts to a judge in aid of the judge’s performing an adjudicatory act; they are the extension, so to speak, of the judge in those circumstances.

The Creation of Immunity Is a Legislative Function

When it is necessary, or desirable, as a matter of public policy to extend judicial immunity to persons who would otherwise probably not enjoy it the Legislature has the power and the right to do so. Thus the Legislature has extended such immunity to arbitrators when acting in the capacity of arbitrators. The Legislature also has the constitutional power to provide for the appointment of persons other than judges to perform some judicial duties.

“The Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.” (Cal. Const., art. VI, §22.)

In 1985 the Legislature granted judicial immunity to arbitrators by enacting Code of Civil Procedure section 1280.1, which provides, in part: “An arbitrator has the immunity of a judicial officer from civil liability when acting in the capacity of arbitrator under any statute or contract.” If there had been any need to extend judicial immunity to those encompassed in the new immunity created by the majority opinion the Legislature could have met that need by similar legislation at that time, or if such need now exists the Legislature is the correct branch of government, and has the power and the right to do so now.

Profound changes in our laws, such as the majority seek to make, should be forged in the proven and legitimate crucible of the legislative process. There witnesses can be heard, pro and con the issue, and they are subject to questioning and probing, under the scrutiny of the press, which tests the interests of the witnesses as well as the merit and need for the proposed legislation. Debate and vote in two houses of the Legislature, and the requirement of approval by the Governor, also assure careful evaluation of the proposals. That is the procedure called for by our Constitution, and it is far better than legislation created in the relative secrecy of a judicial chamber.

The majority’s discussion in support of its holding that judicial immunity should be extended to some broad, undefined, class is actually a series of arguments which might be used to support proposed legislation to create *868 such an immunity. The reasoning might make a good law review article, but it has no place in a judicial decision. Laws should be created by legislation, not by litigation.

The Litigation Privilege of Section 47(2) Does Not Create an Immunity

We must remember that Civil Code section 47(2), creates a privilege for certain publications and broadcasts, commonly referred to as communications. The privilege is known as the “litigation privilege” and is absolute in tort actions, except for malicious prosecution suits. (Silberg v. Anderson (1990) 50 Cal.3d 205, 214-217 [ 266 Cal.Rptr. 638 , 786 P.2d 365 ].) However, section 47(2) does not confer immunity on any person or class of persons, it is limited to reaching and conferring a privilege on certain communications.

As pertinent to this discussion, section 47(2) provides, in part: “A privileged publication ... is one made—

“2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law . . . .”

Conclusion

The process of litigation is a search for truth and justice. To the extent we limit the power of the courts to reach out in search of evidence, in search of the truth, and to the extent we deny citizens the right to seek redress for their grievances, we limit and impair the judicial process. Courts, and legislatures, should be most careful before they absolve persons of accountability for their conduct.

The litigation privilege of section 47(2) is quite enough to provide all persons connected with litigation with protection from tort liability for their communications. There is no need, and there is no showing that it would be wise, to clothe them with an immunity greater than that afforded to judges.