Respondents Brief — Horton v. Superior Court of California

No. 83-1753 | MAY 96

SUPER es rr 5 ee

In the Supreme Court”: |:

}

OF THE

United States

Octoser Term, 1983

Dora JANE Horton,

Administratrix with Will Annexed of the Estate of

J. W. Euruicn, et al.,

Petitioner,

VS.

Ciry anv County or San FRANCISCO, THE STATE OF

CALIFORNIA, THE SuPERIOR CouRT OF THE STATE

oF CALIFORNIA IN AND FOR THE COUNTY OF

San Francisco, Byron ARNOLD,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

GerorGE AGNOST

City Attorney

STEVEN A. Diaz

Deputy City Attorney

Counsel of Record

Purp 8. Warp

Deputy City Attomey

206 City Hall

San Francisco, CA 94102

(415) 558-3315

Attorneys for Respondents

City and County of

San Francisco

and Byron Arnold

BOWNE OF SAN FRANCISCO, INC. * 190 NINTH ST. © S.F., CA 94103 © (415) 864-2300

BFCT AVAILABLE COPY:

TABLE OF CONTENTS

Page

I IE TI TI a viciicettnss sscesennsipstececasecenesnnstintesonsnnes 1

Reasons why certiorari should be denied ........................ 3

REISE AE ones PRs p LNs UR ENC acon Ye NA 8

TABLE OF AUTHORITIES

Cases

Page

Adam vy. Saenger, 303 U.S. 59, 58 S.Ct. 454, 82 L.Ed.

er en ORE ca APO Rade Oy UO SR, SA OR EON 3

Apton v. Wilson, 506 F.2d 83 (D.C. Cir. 1974) .......00....... 5

Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646

I cc tesa cial kilt tihncacsedabtsieidasienitinebnaceonsieesstesiee) 3, 5, 7

Cole v. Hartford Accident and Indemnity Co., 379

A, FIR Ce TA: TOD ascsinssttineeiesicricicrscineninnnn 6

Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d

BI acssrechl deaths eicasicsdiscccrmatecheeacanes nccsineonaseainananeadenagasiones dD, 7

Doe v. County of Lake, 399 F.Supp. 553 (N.D. Ind.

te ee Re SE RS fer aes GL a ee NN eT NON 5, 6

Ex parte Virginia, 100 U.S. (10 Otto) 339, 25 L.Ed. 676

CITE > uprcinielacictaiiaterceninoiondeatecnadtne eesene acacia cers 5

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 93 S.Ct. 1001, 35 L.Md.2d 351 (1973) _........ eas 4

Massachusetts Board of Retirement v. Murgia, 427

U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) ............ 4

il

TABLE OF AUTHORITIES

CasEs

O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965) -.....

O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.

Da GEG CRITE) aac cscitcscesesstcsnsncncitn ea

Padgett v. Stein, 406 F.Supp. 287 (M.D. Penn. 1975) ....

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d

BOG CRIT ) ances cnsencsnesnceeansensteacue

Police Department of the City of Chicago v. Mosley,

408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ......

Pulliam v. Allen, 44 S.Ct. Bull. (CCH) p. B2658 (U.S.

May 14, 1984) (Ne. 83-3438) ......... eee

Shore v. Howard, 414 F.Supp. 379 (N.D. Tex. 1976) ....

Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55

Tn WO.Da SSL CRTC) aiccsesicinsinn cc

Williams v. Sepe, 487 F.2d 913 (5th Cir. 1973) -..............

Statutes and Rules

SB UGC. 4. BG wcecncvvcecesssnsiaeee eee

California Probate Code Section 541 -.0.0..0.... eee

Rule 17.1 of the Rules of the Supreme Court ..................

No. 83-1753

In the Supreme Court

OF THE

United States

OcToBER TERM, 1983

Dora JANE Horton,

Administratrix with Will Annexed of the Estate of

J. W. EHR IcH, et al.,

Petitioner,

VS.

Ciry anp County or San FRANCISCO, THE STATE OF

CALIFORNIA, THE SUPERIOR COURT OF THE STATE

OF CALIFORNIA IN AND FOR THE COUNTY OF

San Francisco, Byron ARNOLD,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

Respondents City and County of San Francisco and

Byron Arnold file this Brief in Opposition to the Petition

for a Writ of Certiorari and pray that the Writ be denied.

STATEMENT OF THE CASE

Petitioner claims that she is entitled to recover dam-

ages from a Superior Court trial judge for an alleged

error in law. The trial court dismissed her claims and the

Court of Appeal affirmed. The California Supreme Court

denied her Petition for Hearing. Petitioner now seeks

review in this Court on a point which has heen a settled

2

part of the common law since before this country was

founded.

Petitioner is the administratrix of the estate of J. W.

“Jake” Ehrlich, who died in 1971. When the petition for

probate was filed, Respondent Byron Arnold was a Supe-

rior Court judge in and for the City and County of San

Francisco. Judge Arnold set the bond for the Executor at

$100,000. Thereafter, in 1978 the Executor was removed

and a judgment returned against him in an amount in

excess of the bond. The Petitioner then sued the City and

County of San Francisco and the State of California for

the excess of the judgment over the bond. It was not until

much later that the Petitioner served Judge Arnold as a

Doe defendant.

Petitioner’s case rests upon the premise that Judge

Arnold erred in failing to set the Executor’s bond at

$300,000 (the purported full value of the estate) in com-

pliance with California Probate Code Section 541. Had

the bond been higher, Petitioner contends, there would

have been ample funds to satisfy the judgment against

the Executor. Since it evidently was not high enough,

Petitioner argues that Judge Arnold (and his employers)

should pay the difference.

The trial court rejected the Petitioner’s claims. The

City and County of San Francisco and the Superior Court

successfully demurred to the Complaint and the State of

California’s motion for judgment on the pleadings was

granted. The trial court also granted Judge Arnold’s

motion to quash service of process. The Court of Appeal

affirmed in an unpublished opinion. Petitioner’s Petition

3

for Hearing was summarily denied by the California Su-

preme Court.’

REASONS WHY CERTIORARI SHOULD BE DENIED

Petitioner fails to satisfy any of the provisions of Rule

17.1 of the Rules of the Supreme Court, governing review

on certiorari. A reading of that rule compels the conclu-

sion that subsections (a) and (b) have no application

herein. Petitioner does not contend that a state court of

last resort has decided a federal question in a way in

conflict with the decision of another state court of last

resort or of a federal court of appeals. Nor does this case

involve a decision by a federal court of appeals.

The only remaining basis for review in this Court, Rule

17.1, subsection (c), is also inapplicable herein. Petitioner

argues that the grant of absolute immunity to trial court

judges, even in situations where the judge is alleged to have

contravened the law, constitutes a denial of equal protec-

tion. This argument is untenable.

Few doctrines are more solidly established at common

law than the immunity of judges from liability for damages

for acts committed within their judicial jurisdiction. See

Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646

(1872). As recently as this Term, the Court, in Pulliam v.

Allen, 44 8.Ct. Bull. (CCH) p. B2658 (U.S. May 14, 1984)

(No. 82-1432), reaffirmed that judges enjoy absolute immu-

nity from civil suits for damages, while holding that

‘Respondents have, for reasons of consistency, followed Peti-

tioner’s nomenclature, but the Writ should have been directed to

the Court of Appeal. Adam v. Saenger, 303 U.S. 59, 61, 58 S.Ct.

454, 82 L.Ed. 649 (1938).

4

judicial immunity is not a bar to prospective injunctive

relief or an award of attorney’s fees against a judicial

officer.

The equal protection clause does not mean that a state

may not draw lines that treat one class of individuals or

entities different from others; the test is whether the

difference in treatment is an invidious diserimination.

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93

S.Ct. 1001, 35 L.Ed.2d 351 (1973), rehearing denied 411

USS. 910, 93 S.Ct. 1523, 36 L.Ed.2d 200 (1973). There are

no allegations herein of infringement of a fundamental

right or use of a suspect classification. See Massachusetts

Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct.

2562, 49 L.Ed.2d 520 (1976).

The crucial question in equal protection cases is whether

there is an appropriate governmental interest suitably

furthered by the differential treatment. Police Department

of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct.

2286, 33 L.d.2d 212 (1972). The doctrine of judicial immu-

nity “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 con-

sequences.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213,

18 L.Ed.2d 288 (1967), quoting Bradley v. Fisher, supra.

The principle of judicial immunity extends to actions

brought under the Civil Rights Act (42 U.S.C. § 1983).

Pierson v. Ray, supra. Petitioner’s reliance on O’Shea v.

Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Fd.2d 674 (1974),

is misplaced. O’Shea spoke only to the issue of criminal

liability under the Civil Rights Act, and clearly dis-

5

tinguished the concept of judicial immunity for civil dam-

ages. O’Shea v. Littleton, supra, 414 U.S. at 503.

Judicial immunity “is dependent on the challenged con-

duct being an official judicial act within [the judge’s] statu-

tory jurisdiction, broadly construed.” [Emphasis added.]

Dennis v. Sparks, 449 U.S. 24, 29, 101 S.Ct. 183, 66 L.Ed.2d

185 (1980). In reviewing a claim of judicial immunity, the

Court must distinguish between excess of jurisdiction and

the clear absence of all jurisdiction over the subject matter.

Bradley v. Fisher, supra. Jurisdiction is to be construed

broadly under the judicial immunity doctrine so that a

judge will not be held liable unless he acts without color of

authority. Apton v. Wilson, 506 F.2d 83, 90 (D.C. Cir.

1974). The policy underlying the doctrine requires that its

application not depend on the determination of “nice ques-

tions of jurisdiction.” Williams v. Sepe, 487 F.2d 913, 914

(5th Cir. 1973).

The cases cited by Petitioner for the proposition that

judicial immunity does not attach to non-judicial acts con-

cern administrative functions of judges outside of the

courtroom. Ex parte Virginia, 100 U.S. (10 Otto) 339, 25

L.Ed. 676 (1880), addressed the criminal liability of judges,

which is not at issue herein. In Shore v. Howard, 414

F.Supp. 379 (N.D. Tex. 1976), the judges were held to be

not immune, when sued in their capacity as the ultimate

employers of the defendant probation officers. Similarly,

in Padgett v. Stein, 406 F.Supp. 287 (M.D. Penn. i975), the

judges were not protected when they were sued in their

executive capacity as members of the county prison board.

And in Doe v. County of Lake, 399 F.Supp. 553 (N.D. Ind.

6

1975), the court held that plaintiffs could bring a suit for

damages against the defendant judges based upon the ad-

ministrative duties of the judges with regard to manage-

ment of the county juvenile detention center. None of these

cases involved the conduct of judges acting in their judicial

capacity, rather than as employers or managers.

Judge Arnold was not acting in an administrative or

executive role when he set the bond for the Ehrlich estate.

He was acting as a judicial officer, just as he would have

been in setting bail or computing a minimum term for a

criminal offense under California’s determinate sentencing

statutes. Assuming he erred in setting the executor’s bond,

still the error was a judicial one. See Cole v. Hartford

Accident and Indemnity Co., 379 F.Supp. 1265 (M.D. Ala.

1974) (holding that determination of the sufficiency of a

proffered surety is a judicial act for purposes of determin-

ing judicial immunity).

This Court has held that, for the purposes of judicial

immunity, the factors determining whether ar. act by a

judge is “judicial” relate to the nature of the act itself

(whether it is a function normally performed by a judge)

and the expectation of the parties (whether they dealt

with the judge in his judicial capacity). Stump v. Spark-

man, 435 U.S. 349, 362, 98 S.Ct. 1099, 55 L.Ed.2d 331

(1978), rehearing denied 436 U.S. 951, 98 S.Ct. 2862, 56

L.Ed.2d 795 (1978). In Stump, the Court upheld the appli-

eation of judicial immunity to a local judge who author-

ized the sterilization of a minor girl upon the mother’s

7

cx parte application, without any hearing, any guardian

ad litem or any statutory authority.

Judge Arnold was fulfilling herein a function normally

performed by a judge; California Probate Code Section

541, subd. (a), provides in relevant part that the bond is

“to be approved by a judge of the superior court.” The

parties came before Judge Arnold and the bond was sub-

mitted to him for that reason; he was clearly acting in his

judicial capacity. The Probate Code clearly gave him juris-

diction over the subject matter.

In light of the broad construction of jurisdiction fav-

ored in Dennis v. Sparks, supra, and the distinction

between excess of jurisdiction and the clear absence of all

jurisdiction over the subject matter set forth in Bradley

v. Fisher, supra, Respondents City and County of San

Francisco and Byron Arnold respectfully submit that

Judge Arnold is entitled to judicial immunity for the act

complained of herein. Judicial immunity is a concomitant

of the independent judiciary indispensable to the well-

being of a free people. O'Bryan v. Chandler, 352 F.2d 987

(10th Cir. 1965), cert. denied 384 U.S. 926, 86 S.Ct. 1444,

16 L.Ed.2d 530 (1966), rehearing denied 385 U.S. 889, 87

S.Ct. 13, 17 L.d.2d 123 (1966).

8

CONCLUSION

For the reasons set forth above, Respondents City and

County of San Francisco and Byron Arnold respectfully

submit that the Petition for a Writ of Certiorari should

be denied.

DATED: May 25, 1984

GrorcE AGNosT

City Attorney

Steven A. Diaz

Deputy City Attorney

COUNSEL OF RECORD

Purie 8. Warp

Deputy City Attorney

By Sreven A. Diaz

Attorneys for Respondents

City and County of

San Francisco

and Byron Arnold