Petition for Writ of Certiorari — Wojcik v. Meek

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Buprens Court, U.8.

FILED

(1)

99515 sep2 21%

me OFFICE OF THE CLERK

In The

Supreme Court of the United States

ALBERT J. WOJCIK and RODNEY WALKER,

Petitioners,

DONALD L. MEEK,

Respondent.

On Petition For Writ Of Certiorari To

United States Court Of Appeals For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Marc J. Poster

Counsel of Record

TiwmotnHy T. Coates

GreiNnes, MARTIN, STEIN

& RicHLAND LLP

9601 Wilshire Blvd., Suite 544

Beverly Hills, California 90210

(310) 859-7811

MicHaet A. BELL

Bett, Orrock & WATASE

2001 Iowa Avenue

Riverside, California 92507

(909) 683-6014

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

r\ >t

QUESTION PRESENTED

When a judge decides who will serve as his or her

subordinate judicial officer and adjudicate cases on the

judge’s behalf, does the judge act in

a judicial capacity, Mireles v. Waco, 502 U.S. 9

(1991), and therefore, to promote judicial inde-

pendence, enjoy absolute immunity from suit

for alleged violation of civil rights in making

that decision,

an administrative capacity, Forrester v. White, 484

U.S. 219 (1988), and therefore expose himself or

herself to such chilling, collateral litigation?

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................... i

NE III ES i's 4 cs 9554. 5d ¢ c00.0dc Se dice cocina, ii

ET os. wns anda poesencacs cc... iii

Re NUNOMIIII ov ssi oes crccodvcsccocsccic, Vv

TABLE OF AUTHORITIES......................... vi

eg ig Re ree 1

ES £00 ood ob 8 6 6 a ules Vad ee dvnenkk: 1

CONSTITUTIONAL AND STATUTORY PROVI-

PEN SU. fe Seco. ccc chooks fs. 1

STATEMENT OF THE CASE....................... 2

A. The Alleged Civil Rights Violation: Defendant

Judges’ Discharge Of Plaintiff Court Commis-

sioner, A Subordinate Judicial Officer, For

MT NEI a 2a 8hSh ohh ccicecscdccccas.

B. Plaintiff's Civil Rights Action................

Defendants’ Assertion Of Their Absolute Judi-

UN a ts.0 his tnd peas viiwh'encue essa.

D. The District Court’s Decision Rejecting Judicial

Sp rh ea aca

E. The Published Ninth Circuit Decision Affirm-

ing The Denial Of Judicial Immunity.........

TABLE OF CONTENTS - Continued

REASONS FOR GRANTING THE PETITION....... 6

WHETHER A JUDGE’S CHOICE OF A SUBORDI-

NATE JUDICIAL OFFICER TO ADJUDICATE

MATTERS ON THE JUDGE’S BEHALEF IS A JUDI-

CIAL FUNCTION - AFFORDING THE JUDGE

ABSOLUTE IMMUNITY FROM CIVIL RIGHTS

LIABILITY - OR AN ADMINISTRATIVE FUNC-

TION - SUBJECTING THE JUDGE TO COLLAT-

ERAL LITIGATION - IS AN ISSUE OF FIRST

IMPRESSION FOR THIS COURT AND OF CRITI-

CAL IMPORTANCE TO THE OPERATION OF ALL

COUT, Feary Ae POD 6 5 bn. 0655 5.deconenes 6

I. ABSOLUTE IMMUNITY FROM COLLATERAL

LITIGATION OVER JUDICIAL CONDUCT IS

THE BEDROCK OF AN INDEPENDENT JUDI-

CREE iedo.6-nc dh dap iets nbs cdeeked sande taeeesi 6

II. CONTRARY TO THE NINTH CIRCUIT’S CON-

CLUSION, A JUDGE’S CHOICE OF A SUBOR-

DINATE JUDICIAL OFFICER TO ADJUDICATE

MATTERS FOR THE JUDGE IS A TRADI-

TIONAL JUDICIAL FUNCTION THAT

SHOULD ENJOY JUDICIAL IMMUNITY ...... 8

A. Whether Conduct Is Judicial Or Adminis-

trative Should Depend On Whether The

Conduct Serves A Judicial Function, Not On

Whether The Conduct Happens To Occur

On The Bench During Trial............... 9

B. Selection Of Subordinate Judicial Officers To

Adjudicate Cases On The Court’s Behalf

Serves A Core Judicial Function........... 12

Ill. THE NINTH CIRCUIT’S DECISION HAS

BROAD, ADVERSE IMPLICATIONS FOR ALL

TRIAL AND APPELLATE JUDGES............ 21

CAUCE Sesh doavaravedeusescedsbcdecadeaenen 22

TABLE OF CONTENTS - Continued

Page

INDEX TO APPENDIX

Opinion of the United States Court of Appeals for

ee Oy CI is ties 0's dade cewin dee ts ids App. 1

Order of the United States District Court for the

Central District of California................. App. 16

Statutes Involved:

California Constitution, article VI, section 22... . App. 38

California Code of Civil Procedure section

OP REET OPE EEN fa 1 RY ay eo App. 38

California Government Code sections 72190,

Fads Teed Be Fee 3 oe os Ee App. 40

TABLE OF AUTHORITIES

Page

Cases

Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997) .... 10

Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871) ....... 7

Brazil-Breashears v. Bilandic, 53 F.3d 789 (7th Cir.

SOU c ou on000000etsbcs ictectuneenuseaes ee 18

Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137

we ee Pee eee 7

Fazio v. City and County of San Francisco, 125

i$ 8 YF. fo - | eee er 16

Ferri v. Ackerman, 444 U.S. 193, 100 S. Ct. 402, 62

Se @ © FF)... Pee err ee Pe 7

Fields v. Soloff, 920 F.2d 1114 (2d Cir. 1990)......... 11

Forrester v. White, 484 U.S. 219 (1988) ....... 4,5, 9, 19

Franceschi v. Schwartz, 57 F.3d 828 (9th Cir. 1995) .... 14

Green v. Henley, 924 F.2d 185 (10th Cir. 1991)....... 16

King v. Myers, 973 F.2d 354 (4th Cir. 1992).......... 20

Kurowski v. Krajewski, 848 F.2d 767 (7th Cir.

RDU cc cccckneceecsueceenedsecvadctensewetien 15, 16

Mathews v. Weber, 423 U.S. 261, 96 S. Ct. 549, 46

.. BG. Dib GD Citiin civics casendaess sd cccenaeee 22

Mireles v. Waco, 502 U.S. 9 (1991) ................. 4,6

Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806,

O6 L. BG. Be GER Cin deca csckeccecauacuneae 7

Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597,

163 LL. Gl. Be ee Gees nie s taNdkadheceeeueee 12

Mumford v. Basinski, 105 F.3d 264 (6th Cir. 1997) .... 17

Vii

TABLE OF AUTHORITIES - Continued

New Alaska Dev. Corp. v. Guetschow, 869 F.2d

SE Ge Gab PE Rankksisdssdcdkacdndenseds ccc 9

Newman v. Voinovich, 986 F.2d 159 (6th Cir. 1993) .... 16

Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690,

Pe ee Oe As chance susbesicccseceksn 5

Richardson v. Koshiba, 693 F.2d 911 (9th Cir. 1982) .... 15

Sparks v. Character and Fitness Comm. of Ky., 859

eee MO Ge GU BUD sc cnnccacccccdsccancccce 11, 19

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

Sis Se eT MN bab bGMacEses cobéawKecsaek 7, 20

Unger v. Superior Court, 37 Cal. 3d 612, 209 Cal.

Rptr. 474, 692 P.2d 238 (1984)..................... 16

United States v. Raddatz, 447 U.S. 567, 100 S. Ct.

2406, 65 L. Ed. 2d 424 (1980)..................... 16

White by Swafford v. Gerbitz, 892 F.2d 457 (6th

SP MOTE cba nec kU Seber cee debanccoigdescccci: 20

Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993)......... 18

STATUTES

fe Se Ot DE H6sbcdnenicinvnbndki Gbenteveseccaws 1

ee IS, beth ins'n Win inna tn pin sk 4 Gos dae 13

IS Se ree ia bee ee 15

Oe We Ga Lawus kabel xeaabnevaccuesseus a 7, 19

a fe a cae ee ie uuica +

Alaska Statutes, § 22.15.170(c).................--. 13, 14

Arkansas Statutes, § 16-17-107 ...................... 13

Vili

TABLE OF AUTHORITIES - Continued

WO Nsk cede hcAdnued Kies eter kena eeanenenenan? 14

California Code of Civil Procedure section 259....2, 14

California Constitution, article VI, section 22...... 1, 14

California Government Code section 72192........ 2, 14

California Government Code sections 72190,

i rey re Pe UP Y TT VT Peery 2, 14

PR Gs EN ahd ecendccn et sancenadrnnn 13, 14

ae: CG, Be Ar aie oc videdacencscundacsens 13

Uy CO: BED occa scctessncnscicssaes 13

ee Ce Be BD ond a cncckaan sn nentesebian 13

North Dakota Supreme Court Administrative Rule

By is Eos taale ORGS shad ees 6 «dca nnen tes 13, 14

Cee Ce Eo ae ee 13

Oklahoma Statutes, § 10-7003.8.6(A).......... oeen ae

Oregon Revised Statutes, § 419A.150............. 13, 14

Revised Code of Washington, § 2.23.010............. 13

Revised Code of Washington, § 2.24.010............. 14

Rhode Island General Laws, § 8-10-3.1(a) ........... 13

Rhode Island General Laws, § 8-10-3.1(c)............ 14

Wisconsin Statutes, § 755.19(1)................... 13, 15

Wyoating Statutes, § 5-3-301 ..... ccc ccccccscsscnss 15

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is set out in the Appendix to this

Petition at Appendix (“App.”) 1 and is reported at 183

F.3d 962.

The opinion of the United States District Court for

the Central District of California is set out in the Appen-

dix to this Petition at App. 16 and is reported at 982

F. Supp. 1410.

JURISDICTION

The United States Court of Appeals for the Ninth

Circuit decided this case on June 24, 1999. No petition for

rehearing was filed.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The full text of California Constitution, article VILL

section 22, authorizing judges to appoint commissioners,

California Code of Civil Procedure section 259 and Cali-

fornia Government Code sections 72190, 72190.1, and

72190.2, relating to the adjudicatory powers of a munici-

pal court commissioner, and California Government Code

section 72192, relating to the service of a commissioner

“at the pleasure of a majority of the judges” of the munic-

ipal court, is set out in the Appendix to this Petition

beginning at App. 38.

STATEMENT OF THE CASE

A. The Alleged Civil Rights Violation: Defendant

Judges’ Discharge Of Plaintiff Court Commis-

sioner, A Subordinate Judicial Officer, For Political

Reasons.

According to his complaint, plaintiff Donald L. Meek

was a Commissioner of Municipal Court of the County of

Riverside, California. (Clerk’s Record [“C.R.”] 1, J 3.)

Under California law, Commissioners are authorized

to act on behalf of the court as temporary judges, to hear

and report findings to the court, to adjudicate uncon-

tested actions, to adjudicate actions involving infractions

and small claims, to conduct arraignments, and to issue

warrants. Cal. Code Civ. Proc. § 259 (West 1982); Cal.

Gov’t Code §§ 72190, 72190.1, and 72190.2 (West Supp.

1997). Commissioners serve “at the pleasure” of a major-

ity of the judges of the court. Cal. Gov’t Code § 72192

(West Supp. 1997).

Plaintiff ran for election as a judge of the Court.

Another Commissioner, defendant Albert J. Wojcik, also

Done

RET Re eReRE Ham,

ran for that judgeship. Plaintiff alleges that a judge of the

court, defendant Rodney Walker, said he considered

plaintiff his political enemy and would fire plaintiff as a

commissioner if plaintiff did not win the election. (C.R. 1,

{ 13.)

Defendant Wojcik defeated plaintiff in the judicial

election. (C.R. 1, {{ 6, 14.) About three weeks before

defendant Wojcik took his seat on the court, he, defen-

dant Walker and another judge, Curtis Hinman, met and

voted on plaintiff’s termination as a commissioner.

Defendants voted for termination; Hinman abstained.

(a; 2, % 35)

Hinman told plaintiff to resign or he would be fired

because of plaintiff's unethical conduct during his elec-

tion campaign. (C.R. 1, { 16.) Hinman also said plaintiff

could have a hearing before defendants Walker and

Wojcik; “however, it would do no good, because the

outcome would be the same.” (C.R. 1, {J 18, 19.) In lieu

of termination or resignation, plaintiff retired as a Com-

missioner. (C.R. 1, { 17.)

B. Plaintiff’s Civil Rights Action.

Plaintiff sued defendants for violation of his civil

rights under 42 U.S.C. § 1983. (C.R. 1.) Plaintiff alleged he ©

was constructively discharged, and that his discharge for

ethical violations was a pretext for defendants’ true

motive of retaliation for plaintiff’s exercise of his First

Amendment right to run and campaign for office. (C.R. 1,

1 20, 24, 25.) He seeks special, general and punitive

damages from defendants personally. (C.R. 1, {{ 27, 28.)

C. Defendants’ Assertion Of Their Absolute Judi-

cial Immunity.

Defendants moved to dismiss plaintiff’s complaint

for failure to state grounds upon which relief could be

granted. Fed. R. Civ. P. 12(b)(6). They asserted they were

absolutely immune from civil rights liability for plain-

tiff’s alleged constructive discharge as a Court Commis-

sioner because the selection of subordinate judicial

officers such as Court Commissioners is an inherently

judicial function, Mireles v. Waco, 502 U.S. 9, 9-10, 112

S. Ct. 286, 116 L. Ed. 2d 9 (1991) (“Mireles”). (C.R. 4.)}

D. The District Court’s Decision Rejecting Judicial

Immunity.

The district court denied defendants’ motion to dis-

miss. (App. 16.) The court ruled, among other things, that

the defendant judges did not have judicial immunity

because their alleged acts were, in the court’s view,

administrative rather than judicial, citing Forrester v.

White, 484 U.S. 219, 108 S. Ct. 538, 98 L. Ed. 2d 555 (1988)

(“Forrester”). (App. 23-29.)

1 Plaintiff also sued the County of Riverside, California.

The district court granted the County’s motion to dismiss. (App.

21-22.) Plaintiff has not contested that ruling.

ee eA AERLT OL ET IT

E. The Published Ninth Circuit Decision Affirm-

ing The Denial Of Judicial Immunity.

Defendants appealed,? but the Ninth Circuit Court of

Appeals affirmed in a 2-1 decision. The majority ruled

that “appellants were not entitled to judicial immunity

because the challenged action, their decision to construc-

tively terminate Meek, was an administrative rather than

a judicial act.” Relying on Forrester, the Ninth Circuit

stated:

A state court judge is generally not entitled to

absolute immunity from liability arising out of a

decision to fire a subordinate judicial employee

because the decision is not a judicial or adjudi-

cative act, but rather an administrative one.

(App. 6.)

The Ninth Circuit rejected defendants’ argument that

due to the adjudicative duties of a court commissioner, a

judge’s decision to hire or fire a commissioner is an

inherently judicial function. The court could find no

reported case “in which a court evaluated the nature of

the services provided by a fired employee to determine

whether the decision to terminate was judicial.” (App. 7.)

Unwilling to undertake a functional evaluation, the Ninth

Circuit instead adopted the district court’s formalistic

approach for its conclusion that the defendants acted in

their administrative rather than judicial capacity:

First, the decision to terminate plaintiff was an

administrative decision, rather than a judicial

2 The order denying an immunity defense is appealable as a

matter of right. Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102

S. Ct. 2690, 2697, 73 L. Ed. 2d 349 (1982).

act, because it involved the termination of an

employee, and not a decision in a matter pend-

ing before the court. Second, although it is

unclear whether the vote to terminate plaintiff

took place in a judge’s chambers, it did not

occur while the court was in session. Third, the

controversy centered, not on a case, but on

plaintiff’s efforts to seek the same judicial office

as then-Commissioner Wojcik in the April, 1996

election. Finally, according to the allegations of

the complaint, the decision to terminate plaintiff

was a response to his campaign for judicial

office and had nothing to do with plaintiff’s

performance or decision in a particular case.

(App. 10.)

REASONS FOR GRANTING THE PETITION

WHETHER A JUDGE’S CHOICE OF A SUBORDINATE

JUDICIAL OFFICER TO ADJUDICATE MATTERS ON

THE JUDGE’S BEHALF IS A JUDICIAL FUNCTION -

AFFORDING THE JUDGE ABSOLUTE IMMUNITY

FROM CIVIL RIGHTS LIABILITY - OR AN ADMINIS-

TRATIVE FUNCTION - SUBJECTING THE JUDGE TO

COLLATERAL LITIGATION - IS AN ISSUE OF FIRST

IMPRESSION FOR THIS COURT AND OF CRITICAL

IMPORTANCE TO THE OPERATION OF ALL OUR

NATION’S COURTS.

I. ABSOLUTE IMMUNITY FROM COLLATERAL

LITIGATION OVER JUDICIAL CONDUCT IS THE

BEDROCK OF AN INDEPENDENT JUDICIARY.

Since mediaeval times, the law has afforded judges

absolute immunity from suit over their conduct as judi-

cial officers. Mireles, 502 U.S. at 9-10. In particular, judges

are absolutely immune from civil rights liability under 42

U.S.C. § 1983 arising from exercise of their judicial func-

tions, even if the judges allegedly act in excess of jurisdic-

tion and out of malice or ulterior motive. Stump v.

Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 1105, 55

L. Ed. 2d 331 (1978).

Judicial immunity, like similar immunities for legisla-

tors and prosecutors, promotes uninhibited, independent

decision-making. Clinton v. Jones, 520 U.S. 681, 692-93, 117

S. Ct. 1636, 1643, 137 L. Ed. 2d 945 (1997). It frees the

judge “to act upon his own convictions without appre-

hension of personal consequences to himself.” Bradley v.

Fisher, 80 U.S. (13 Wall.) 335, 347 (1871). “[T]he essence of

absolute immunity is its possessor’s entitlement not to

have to answer for his conduct in a civil damages action.”

Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S. Ct. 2806, 2815,

86 L. Ed. 2d 411 (1985). The risk of occasional abuse of

power is outweighed by the benefits of fearless decision-

making. As this Court explains in Ferri v. Ackerman, 444

U.S. 193, 202-04, 100 S. Ct. 402, 408-09, 62 L. Ed. 2d 355

(1979):

As public servants, the prosecutor and the judge

represent the interest of society as a whole. The

conduct of their official duties may adversely

affect a wide variety of different individuals,

each of whom may be a potential source of

future controversy. The societal interest in pro-

viding such public officials with the maximum

ability to deal fearlessly and impartially with

the public at large has long been recognized as

an acceptable justification for official immunity.

The point of immunity for such officials is to

forestall an atmosphere of intimidation that

would conflict with their resolve to perform

their designated functions in a principled fash-

ion.

The issue in this case is whether the defendant

judges’ alleged politically-motivated decision to dis-

charge their court commissioner was administrative or

judicial. As we shall explain, this is a novel and important

issue of concern to all courts and judges, with implica-

tions far beyond the selection of commissioners. In con-

cluding that the judges’ decision in this case was

administrative rather than judicial, the Ninth Circuit

erroneously frustrates the purpose of judicial immunity,

undermines the freedom of all judges to adjudicate cases

and administer justice in accordance with their indepen-

dent view of the law, muddies the waters of judicial

immunity jurisprudence, and_opens the door to unwar-

ranted litigation against appellate as well as trial judges.

Il. CONTRARY TO THE NINTH CIRCUIT’S CON-

CLUSION, A JUDGE’S CHOICE OF A SUBORDI-

NATE JUDICIAL OFFICER TO ADJUDICATE

MATTERS FOR THE JUDGE IS A TRADITIONAL

JUDICIAL FUNCTION THAT SHOULD ENJOY

JUDICIAL IMMUNITY.

A judge’s selection of subordinate judicial officers is,

by tradition and function, a judicial act. In classifying it

as a mere administrative act for purposes of judicial

immunity, the Ninth Circuit forsakes a functional

approach and resorts to mere matters of form; the court

focuses entirely on the circumstances that the conduct

also involves the termination of an employee, does not

occur while the court was in session, and does not center

on a particular case. (App. 10.) In placing form ahead of

substance, the Ninth Circuit’s approach threatens to

undermine judicial immunity and to sharply curtail all

judges’ freedom to decide how their cases should be

adjudicated.

A. Whether Conduct Is Judicial Or Administrative

Should Depend On Whether The Conduct

Serves A Judicial Function, Not On Whether

The Conduct Happens To Occur On The Bench

During Trial.

As this Court has held, judicial immunity “is justified

and defined by the functions it protects.” Forrester, 484

U.S. at 227, original emphasis. In Forrester, the Court

found that a judge acted in an administrative rather than

judicial capacity when he fired a probation officer from

the court’s staff. The Ninth Circuit purported to apply

Forrester to this case, but in fact it applied only superficial

factual similarities rather than fundamental legal princi-

ples. There is a critical and qualitative difference between

the selection of court administrative personnel such as

probation officers or court clerks, who provide vital but

routine assistance to the court, and the selection of subor-

dinate judicial officers, who actually adjudicate matters

on the court’s behalf. Adjudicating cases is an inherently

judicial act, and in deciding who will adjudicate their

cases for them, judges are deciding how their cases will be

adjudicated for them.

Even the Ninth Circuit acknowledges that selection

of a subordinate judicial officer in a particular case is a

judicial function. New Alaska Dev. Corp. v. Guetschow, 869

F.2d 1298, 1302 (9th Cir. 1989) (appointment of receiver).

If selection of a subordinate judicial officer to adjudicate a

particular matter is a judicial function, selection of a sub-

ordinate judicial officer to adjudicate all such matters

must be a judicial function, too.

Contrary to the Ninth Circuit’s analysis in the pre-

sent case, other circuits have recognized that “the appli-

cability of judicial immunity is not limited to acts which

occur within the confines of the courtroom, and conse-

quently, acts performed outside of the courtroom are not,

ipso facto, non-judicial acts.” Barrett v. Harrington, 130 F.3d

246, 260 (6th Cir. 1997). Judges enjoy absolute immunity

for a variety of judicial functions that do not involve

decision-making in a particular case.

In Barrett, a judge instigated a criminal investigation

against a disgruntled litigant. The Sixth Circuit found the

judge enjoyed absolute judicial immunity for this conduct

because an act “taken to protect the integrity of the

judicial system, is a ‘judicial act’ and therefore entitled to

absolute judicial immunity.” Id. at 257. Rejecting the

courtroom litmus-test adopted by the Ninth Circuit, the

Barrett court applies the functional approach:

In this case, Judge Harrington’s letters to prose-

cutors did not concern whether Mr. Barrett

would win or lose the case. However, the letters

did involve the ‘case deciding process,’ as the

Judge wrote to express her fear that the harass-

ment would cause her to have to recuse herself

from future cases involving Mr. Barrett - recusal

is undoubtedly an act that concerns judicial

decision-making. Id. at 258.

— ah

wre

In Fields v. Soloff, 920 F.2d 1114 (2d Cir. 1990), the

court applied judicial immunity to a judge’s limitation of

a grand juror’s free speech rights. There was no case

pending before the court, but supervision of the grand

jury is a traditional judicial function.

Similarly, when a judge decides on the qualifications

of attorneys applying for admission to the bar of the

judge’s court, the judge is not deciding a particular case,

but rather deciding how all cases will be conducted in the

judge’s court. This is an inherently judicial function for

which the judge enjoys absolute immunity. As Sparks v.

Character and Fitness Comm. of Ky., 859 F.2d 428, 434 (6th

Cir. 1988) explains:

Some functions performed by courts are so

inherently related to the essential functioning of

the courts as to be traditionally regarded as

judicial acts. Determining the composition of the

bar is just such an historic and traditional func-

tion. The establishment of criteria for determin-

ing the intellectual competence, academic

preparedness, and moral fitness of persons who

petition the court for the privilege of undertak-

ing the confidential trust of serving the court as

one of its professional officers has always been a

function confined to the courts themselves. It

has been universally thought that the courts are

best equipped to understand the requirements

for adequate representation of lay persons

before the courts and to identify the qualifica-

tions of those who would undertake such repre-

sentation as the courts’ officers. That inherent

expertise, and the exercise of the power to apply

it in admitting and rejecting candidates to the

practice of law, functions rooted in tradition and

history, are arguably as fundamental to the

sound functioning of the judiciary as is the task

of resolving the disputes such officers present.*

In short, the classification of conduct as judicial or

administrative for purposes of judicial immunity ought to

depend on the function served by the judge’s conduct,

not, as the Ninth Circuit would have it, simply on such

formalistic factors as whether the conduct occurred in the

courtroom or entailed an employment decision.

B. Selection Of Subordinate Judicial Officers To

Adjudicate Cases On The Court’s Behalf Serves

A Core Judicial Function.

California judges, like judges in many states, in all

federal district courts, and even some federal appellate

3 In discussing the court’s authority to appoint

independent counsel, this Court explained in Morrison v. Olson,

487 U.S. 654, 681 n.20, 108 S. Ct. 2597, 2614 n.20, 101 L. Ed. 2d

569 (1988): “By way of comparison, we also note that federal

courts and judges have long performed a variety of functions

that, like the functions involved here, do not necessarily or

directly involve adversarial proceedings within a trial or

appellate court. For example, federal courts have traditionally

supervised grand juries and assisted in their ‘investigative

function’ by, if necessary, compelling the testimony of

witnesses. [Citation.] Federal courts also participate in the

issuance of search warrants, [citation], and review applications

for wiretaps, [citations], both of which may require a court to

consider the nature and scope of criminal investigations on the

basis of evidence or affidavits submitted in an ex parte

proceeding. . . . [F]ederal courts possess inherent authority to

initiate contempt proceedings for disobedience to their orders,

and this authority necessarily includes the ability to appoint a

private attorney to prosecute the contempt.”

courts, have the authority to select subordinate judicial

officers - usually called commissioners, magistrates or

referees — to assist them in deciding, or even to assume

the duty of deciding, cases that come before their courts.‘

* Federal district judges appoint magistrate judges

pursuant to 28 U.S.C. § 631. The Ninth Circuit itself has an

Appellate Commissioner, appointed by the Court to adjudicate

certain matters, including dispositive motions. See 9th Cir. R.

27-1(1) advisory committee’s note. A non-exclusive list of states

that authorize judicial appointment of subordinate officers

includes: Alaska Statutes, § 22.15.170(c) (“The presiding judge

of the superior court in each judicial district shall appoint the

magistrates for the district court for the judicial district.”);

Arkansas Statutes, § 16-17-107 (municipal court judges appoint

magistrates as “judicial officers”); Indiana Code, §§ 33-5-40-73

(court appoints two magistrates), 33-4-7 (“Not more than one (1)

of the magistrates may be a member of the same political

party.”); Kentucky Const., § 113 (“In any county in which no

district judge resides the chief judge of the district shall appoint

a trial commissioner who shall be a resident of such county and

who shall be an attorney if one is qualified and available.”)

North Dakota Sup. Ct. Admin. R. 20, § 4 (“The presiding judge

of the judicial district may appoint a magistrate. . . .”); Ohio Civ.

R. 53(A) (“A court of record may appoint one or more

magistrates who shall be attorneys at law admitted to practice

in Ohio.”); Oklahoma Statutes, § 10-7003.8.6(A) (“Any judge

who is assigned to hear juvenile cases ... may appoint a suitable

person or persons to act as referee or referees. . . . “); Oregon

Revised Statutes, § 419A.150 (“The judge of the juvenile court

may appoint one or more persons as referee of the juvenile

court. ... ”); Rhode Island General Laws, § 8-10-3.1(a) (“The

court may appoint magistrates to assist the court in the conduct

of its business.”); Revised Code of Washington, § 2.23.010

(“There may be appointed in each county or judicial district, by

the judges of the superior court having jurisdiction therein, one

or more court commissioners for said county or judicial

district.”); Wisconsin Statutes, § 755.19(1) (“The presiding judge

of the municipal court shall be the appointing authority. . . . ”).

Under California law, a commissioner is deemed a subor-

dinate judicial officer, Cal. Const. art. VI, § 22, Cal. Gov't

Code §§ 72190, 72701 (West Supp. 1997), and performs

many adjudicatory functions normally performed by

judges. Franceschi v. Schwartz, 57 F.3d 828 (9th Cir. 1995).

Commissioners are authorized, among other things, to act

as temporary judges, to hear and report findings to the

court, to determine all uncontested actions, to determine

actions involving infractions and small claims, to conduct

arraignments, and to issue warrants. Cal. Code Civ. Proc.

§ 259; Cal. Gov’t Code §§ 72190, 72190.1, and 72190.2.

Thus, in many instances commissioners actually make

judicial decisions for their appointing judges and in

others they take proof and make findings upon which the

appointing judges base their judicial decisions.

Under California law, commissioners, like commis-

sioners, magistrates and referees in many states, serve “at

the pleasure” of a majority of the judges of the court. Cal.

Gov't Code § 72192 (West Supp. 1997).5 This legislation

5 For example, Alaska Statutes, § 22.15.170(c) (“Each

magistrate serves at the pleasure of the presiding judge of the

superior court in the judicial district for which appointed.”);

Indiana Code, § 33-4-7 (“Not more than one (1) of the

magistrates may be a member of the same political party.”);

North Dakota Sup. Ct. Admin. R. 20, § 4 (“ . . . to serve at the

pleasure of the presiding judge.”); Oklahoma Statutes,

§ 10-7003.8.6(A) (“ . . . to hold office at the pleasure of the

judge.”); Oregon Revised Statutes, § 419A.150 (“A person

appointed referee shall . . . hold office as such at the pleasure of

the judge.”); Rhode Island General Laws, § 8-10-3.1(c) (“The

magistrate shall serve at the pleasure of the chief judge. . . . ”);

Revised Code of Washington, § 2.24.010 (“Each such

commissioner shall . . . hold the office during the pleasure of the

acknowledges the necessary judicial discretion inherent

in the selection of subordinate judicial officers. Even in

jurisdictions where subordinate judicial officers serve for

specified terms,® their judges still retain the authority not

to reappoint them at the end of their terms.”

Subordinate judicial officers represent the judges and

act for them, typically in matters that most closely and

significantly impact the lives of average citizens, such as

juvenile, family, criminal and probate proceedings. They

hold significant policymaking positions, especially in

their role as temporary judges for the court. As Kurowski

v. Krajewski, 848 F.2d 767, 770 (7th Cir. 1988) explains:

A judge both makes and implements govern-

mental policy. A judge may be suspicious of the

police or sympathetic to them, stern or lenient in

sentencing, and political debates rage about

such questions. In most states judges are

elected, implying that the office has a political

judges making the appointment.”); Wisconsin Statutes,

§ 755.19(1) (“The presiding judge of the municipal court shall be

the appointing authority and may terminate the employment of

a municipal court commissioner at will and without cause.”);

Wyoming Statutes, § 5-3-301 (“District court commissioners

shall hold office during the pleasure of the district court, and

may be summarily removed.”).

? The Ninth Circuit cites Richardson v. Koshiba, 693 F.2d 911

(9th Cir. 1982) for the proposition that the “act of appointing

state judges involves an executive not a judicial act.” App. 9 n.2.

Richardson involved an action against members of the State

Judicial Selection Commission, not judges. The court assumed

that if the appointment had been made by a judge, rather than

the Commission, the judge would have been immune. 693 F.2d

at 914 n.10.

component. Holders of the appointing authority

may seek to ensure that judges agree with them

on important jurisprudential questions. . . .

What is true about the office of judge is true

about the office of judge pro tempore.®

Even when commissioners act only in an advisory

role, their advice carries great weight with the judges. In

the similar context of the use of special masters as fact-

finders, this Court has acknowledged that it “regularly

acts on the basis of the master’s report and exceptions

thereto.” United States v. Raddatz, 447 U.S. 667, 683 n.11,

100 S. Ct. 2406, 2416 n.11, 65 L. Ed. 2d 424 (1980).

8 For this reason, the appointment of judges is deemed an

inherently political function not subject to First Amendment

restrictions. Newman v. Voinovich, 986 F.2d 159, 163 (6th Cir.

1993) (“Governor Voinovich is free to make judicial

appointments based on political considerations.”). In this

regard, political loyalty is a valid justification for selecting and

dismissing such policymaking appointees. Green v. Henley, 924

F.2d 185, 187 (10th Cir. 1991); Fazio v. City aad County of San

Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (“a public official

who is a ‘policymaker’ may be fired for political reasons

without offending the United States Constitution”).

Although California judicial positions are supposed to be

“nonpartisan,” judges and commissioners are policymakers.

The mere fact that judges are elected highlights the political

component of their job. Kurowski v. Krajewski, 848 F.2d at 770

(7th Cir. 1988). Indeed, under Californi. !aw, political parties

may endorse, support, or oppose candidates for “nonpartisan”

offices. Unger v. Superior Court, 37 Cal. 3d 612, 615, 209 Cal. Rptr.

474, 475, 692 P.2d 238, 239 (1984). Judges are not automatons,

applying strict rules to given sets of facts. They must decide

what the facts are and choose among competing legal policies

and principles to reach a just result in each case. Their political

views on the law and how it should be administered necessarily

“olor their decisions.

nV ene coronene eeener arisen

ee ae

The judges’ choice of commissioners is therefore sen-

sitive and personal and, ideally, reflects the judges’ own

judicial philosophies and decision-making styles. Loyalty,

trust, confidence and philosophical affinity are entirely

legitimate considerations in the selection of a subordinate

judicial officer. Other circuits acknowledge this. In Mum-

ford v. Basinski, 105 F.3d 264 (6th Cir. 1997), the adminis-

trative judge of an Ohio domestic relations court replaced

the court’s chief referee after the referee supported the

judge’s unsuccessful opponent for election to the judge’s

seat. The Sixth Circuit upheld dismissal of the referee’s

civil rights claim because the referee was a policymaker

in whom the judge must have complete trust and confi-

dence. Id. at 271. The court explained:

The effective performance of a subordinate

‘political’ public office requires that the

employee and supervisor maintain a viable

working relationship, which includes confi-

dence by the supervisor in the employee’s polit-

ical credentials and philosophy, as well as his

intellectual and technical abilities. Id.

The Sixth Circuit’s reasoning is fully applicable here:

Unquestionably, the inherent duties of an Ohio

domestic relations court referee entail a relation-

ship of confidence between the referee and the

judge(s) which he serves. The referee is privy to

confidential litigation materials and internal

court communications in the discharge of his

duties, and further maintains a personal rela-

tionship with the judge(s) which he serves.

[Citations.] Moreover, the referee effectively

makes policy for, or suggests policy to, the court

on each occasion that he resolves a dispute in

the court’s name or recommends a disposition

to the judge. Consequently, his supervising judge

must be convinced that the judgment capabilities

of the referee, and the confidential relationships

that arise as a result of the intimate judicial and

quasi-judicial discussions, are unquestionable.

The referee’s political ideology, associations, and

activities may rationally influence a judge’s

assessment of an individual’s suitability for a

position as his referee. Id. at 272.9

As a municipal court commissioner, plaintiff held a

position of trust and confidence with the judges of the

municipal court. Plaintiff effectively made public policy

for the court and exercised delegated judicial authority in

resolving disputes, issuing warrants, conducting arraign-

ments, and the like, on the court’s behalf. As a matter of

sound public policy, the judges for whom he acts, and

with whom he must work, should be entitled to choose a

subordinate judicial officer in whom they have absolute

confidence and with whom they share political affinity.

They should not be forced to retain a commissioner who

has attempted to prevent one of them from being a judge.

As Judge Posner aptly put it in Wilbur v. Mahan, 3 F.3d

214 (7th Cir. 1993):

A public agency would be unmanageable if its

head had to appoint or retain his political ene-

mies. .. . Id. at 217.

9 See also Brazil-Breashears v. Bilandic, 53 F.3d 789 (7th Cir.

1995), where an appellate court staff attorney ran for election to

a trial court position. This violated the appellate court’s policy

against court employees publicly engaging in election

campaigns, so the attorney was discharged. The Seventh Circuit

upheld the discharge: “Time and again, the Supreme Court and

lower federal courts have upheld similar restrictions on the

political activity of state employees.” Id. at 791.

If a public official is permitted to fire a confiden-

tial or policymaking employee merely because

the latter quietly, inoffensively, undemon-

stratively belongs to the wrong political party

.. . the official should be permitted to fire the

same employee when he latter asks the electo-

rate to throw the rascal out and put himself into

the rascal’s office. Id. at 218.

To maintain the unfettered independence we expect

from our courts, judges cannot be bound to choose or

keep any particular person as their judicial surrogate.

That is why, unlike the judge’s decision to replace a

probation officer in Forrester, the defendants’ decision to

replace their commissioner truly was a judicial act, not a

mere administrative act “that simply happen[s] to have

been done by judges.” 484 U.S. at 227. And that is why

the process for selecting commissioners necessarily

should remain immune from attack under Section 1983 by

disappointed office-seekers such as plaintiff. The selec-

tion of subordinate judicial officers, as occurred in this

case, is a judicial function “rooted in tradition and his-

tory” and “fundamental to the sound functioning of the

judiciary.” Sparks v. Character and Fitness Comm., supra,

859 F.2d 428, 434. The Ninth Circuit's contrary decision

makes bad public policy and adopts a formalistic

approach that flies in the face of the functional approach

to judicial immunity that this Court and other circuits

have adopted. !°

10 The district court found that even if defendants engaged

in a judicial function, they acted “in complete absence of

jurisdiction.” (App. 29.) The court relied on the fact that at the

time of the alleged constructive discharge defendant Wojcik had

not yet taken his oath of office and that the two defendants had

Moreover, as we next explain, unless the Ninth Cir-

cuit’s formalistic approach is rejected, it could get even

worse.

no authority to discharge plaintiff since by law plaintiff served

at the pleasure of a majority of a dozen municipal court judges.

The district court was wrong about this, too. Judges do not

act in complete absence of jurisdiction, “even if [their] exercise

of authority [was] flawed by the commission of grave

procedural errors.” Stump v. Sparkman, 435 U.S. at 359. By

claiming that the defendants constructively discharged him -

that_he reasonably believed defendants had the authority to

discharge him - plaintiff necessarily concedes defendants were

acting within their jurisdiction.

Moreover, even if defendants had actually discharged

plaintiff and had failed to follow proper procedures, they still

would not have acted “in the complete absence of all

jurisdiction.” That phrase means much more than just “in excess

of jurisdiction.” King v. Myers, 973 F.2d 354, 358 (4th Cir. 1992)

(“[The magistrate’s] actions were judicial in that, while she may

have exceeded her authority in the manner in which she ordered

the arrest, she performed a function ‘normally performed by a

judge.’ ”). As we have shown, selection of subordinate judicial

officers is a function “normally performed by a judge.”

However misguided defendants’ alleged conduct was, in

deciding who they wanted as their commissioner, they were

doing what judges do.

The fact that defendant Wojcik had not yet formally taken

office as judge is immaterial. White by Swafford v. Gerbitz, 892

F.2d 457, 462 (6th Cir. 1989) (defects in seating of judge does not

deprive judge of all jurisdiction). He was acting as a judge-elect,

not as a private citizen. See Mumford v. Basinski, 105 F.3d at 266,

where the defendant judge-elect wrote to the plaintiff domestic

relations referee that he would be terminated immediately upon

the judge assuming office. Judicial immunity applied there, just

as it should apply here.

Sener neten oe

III. THE NINTH CIRCUIT’S DECISION HAS

BROAD, ADVERSE IMPLICATIONS FOR ALL

TRIAL AND APPELLATE JUDGES.

As we have shown, a judge ought to be free to select

and discharge subordinate judicial officers without the

chilling impact of potential federal civil rights litigation

influencing his or her decision. A judge should not be

required to work beside, share confidential matters with,

and have his or her cases adjudicated by a subordinate

who is not attuned to the judge’s judicial philosophy or,

as in this case, has attempted to prevent the judge from

occupying his or her judgeship.

The Ninth Circuit’s rejection of judicial immunity in

these circumstances has far-reaching implications. It is an

open invitation for virtually any disgruntled rejected

applicant for a federal magistrate judge position or simi-

lar state magistrate or commissioner position to file suit

against those judges responsible for making the decision

that he or she, for whatever reason, should not exercise

the judicial power of the court. Even the barest allegation

of discrimination in selection, whether it be based on

party affiliation, race, religion, or even judicial philoso-

phy, would, under the Ninth Circuit’s decision, be suffi-

cient to state a claim and require each and every judge

involved in the decision-making process to, at the very

least, participate in discovery and obtain vindication at

earliest, if at all, upon motion for summary judgment.

The result is an inevitable and substantial entanglement

in litigation for making a core judicial decision — delega-

tion of judicial power - the very evil that the doctrine of

judicial immunity was designed to avoid.

Moreover, as the facts of this case indicate, these

pernicious effects are not limited to initial selection of

judicial officers. These very same considerations and

their chilling effect on judicial independence will arise

any time a decision must be made concerning the contin-

ued employment of subordinate judicial officers who, as

in California and many other states, serve “at the plea-

sure” of the court.

The Ninth Circuit’s decision makes bad public policy,

unnecessarily and harmfully interfering with inherent

judicial discretion and core judicial decision-making.

Judges must be free to select subordinate judicial officers

to represent the judges and adjudicate matters on the

judges’ behalf. These critical judicial processes should not

be constrained by concerns of litigation over subjective

selection criteria. Otherwise, our entire judicial system

could grind to a halt.

CONCLUSION

America’s trial and appellate courts are over-

whelmed with work. Indeed, Congress overhauled the

federal magistrate system and broadened the magistrates’

authority in light of “a multitude of new statutes and

regulations [that] had created an avalanche of additional

work for the district courts which could be performed

only by multiplying the number of judges or giving

judges additional assistance.” Mathews v. Weber, 423 U.S.

261, 268, 96 S. Ct. 549, 553, 46 L. Ed. 2d 483 (1976). Courts

could not function effectively without the assistance of

loyal, trustworthy subordinate judicial officers such as

Sli ( itststst—“—st—t—‘“—i—i—i—i—i—it

commissioners, magistrates, special masters and referees,

and without the freedom to assign work as needed.

Defendants respectfully urge this Court to review this

case and clarify for all courts and litigants whether abso-

lute judicial immunity applies to judges’ decisions

regarding selection of subordinate judicial officers.

Respectfully submitted,

MicHaet A. Bett

Bert, Orrock & Wartase, LLP

Marc J. Poster

Timotny T. Coates

GrREINES, MarrtIN, STEIN

& RicHLAND LLP

Attorneys for Petitioners

Albert J. Wojcik and Rodney Walker

App. 1

APPENDIX

Opinion of the United States Court of Appeals for the

Ninth Circuit

Donald L. MEEK, Plaintiff-Appellee,

COUNTY OF RIVERSIDE, Defendant,

and

Albert J. Wojcik, Judge, Riverside Municipal Court;

Rodney Walker, Judge, Riverside Municipal Court,

Defendants-Appellants.

No. 97-56531.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1999.

Filed June 24, 1999.

Before: FERGUSON, BRUNETTI, and T. G. NELSON,

Circuit Judges.

Opinion by Judge BRUNETTI; Dissent by Judge

FERGUSON.

BRUNETTI, Circuit Judge.

Donald L. Meek brought a section 1983 action against

the County of Riverside and two municipal court judges

alleging that his First Amendment right to campaign for

public office had been violated when he was construc-

tively fired in retaliation for his seeking election to a

municipal court judgeship. The defendants moved to dis-

miss the complaint for failure to state grounds upon

which relief can be granted. The district court denied the

individually named defendants’ motion to dismiss find-

ing that they were not entitled to judicial immunity and

that the determination of whether a court commissioner

has a First Amendment right not to be fired for political

reasons could not be made on the record before it. This

App. 2

appeal followed. We have jurisdiction over the district

court’s denial of judicial immunity pursuant to § 28

U.S.C. 1291, and we affirm. Because the denial of the

claim that Meek does not have a First Amendment right

not to be terminated for political reasons is not a final

order, we lack jurisdiction to review the district court's

resolution of the issue at this stage of the litigation and

therefore dismiss, in part, the appeal.

Meek was appointed a Commissioner of Municipal

Court of the County of Riverside, California, in 1989 and,

during his tenure, was assigned primarily to the Mt. San

Jacinto Judicial District. In September of 1995, Meek

learned that two vacancies on the Riverside Municipal

Court would occur in March and April of 1996. One of the

seats was to be filled by a non-partisan election and the

other by a gubernatorial appointment. Meek approached

then-Commissioner Albert J. Wojcik about an arrange-

ment whereby Meek would support Wojcik in the March,

1996, non-partisan election for the first vacant seat and

Wojcik would support Meek in his efforts to obtain a

gubernatorial appointment to the second seat.

Shortly after his meeting with Wojcik, Meek con-

cluded that Wojcik would not support him in his effort to

obtain the gubernatorial appointment. He also learned

that Municipal Judge Curtis R. Hinman had written a

letter to Governor Wilson supporting Sherill Nielsen, a

close friend and associate of Municipal Judge Rodney

Walker, for appointment to the municipal court. Deciding

that he had little chance of obtaining the appointment,

beerertemeniatataaiaiiiiiitai a ee

App. 3

Meek chose to run against Wojcik in the March election.

During the campaign, Judge Walker allegedly stated that

he would fire Meek from his position of court commis-

sioner if Meek lost the election and that he considered

Meek his political enemy.

On March 26, 1996, Wojcik was elected judge of the

Mt. San Jacinto Municipal Court and he took office on

April 23, 1996. On April 4, 1996, then-Commissioner

Wojcik, Judge Walker, and Judge Hinman met and held a

vote on whether Meek should be terminated. Wojcik and

Walker voted to fire Meek and Judge Hinman abstained.

On April 8, 1996, Judge Hinman informed Meek of

the vote to dismiss and told him that he would be fired if

he did not resign by April 12, 1996. Judge Hinman

informed Meek that he had a right to a hearing before

Wojcik and Walker but that “it would do no good,

because the outcome would be the same.” In lieu of

termination or resignation, Meek elected to retire on

April 8, 1996. Meek filed a section 1983 suit against

Wojcik, Walker, and the County of Riverside claiming that

he had been fired in retaliation for exercising his First

Amendment right to run and campaign for office. Claim-

ing judicial and political immunity, Wojcik and Walker

moved to dismiss the complaint for failure to state

grounds upon which relief can be granted.! The district

court denied Wojcik and Walker’s motion to dismiss. The

district court found that Wojcik and Walker were not

1 The County also moved to dismiss the complaint. The

district court granted the County’s motion, finding that the

County was not responsible for the conduct of municipal court

judges. The County is not a party to this appeal.

App. 4

entitled to judicial immunity because the challenged

action was administrative rather than judicial in nature.

The district court further found that Wojcik and Walker

acted in complete absence of jurisdiction when they con-

structively fired Meek and that therefore such action was

not protected by judicial immunity. The district court also

refused to dismiss the complaint on the ground of “abso-

lute political immunity” because it found that it could not

resolve on the record before it the issue of whether Meek

had a First Amendment right to not be terminated from

his position as court commissioner for political reasons.

A. Judicial Immunity

Wojcik and Walker claim that the district court erred

in its ruling on absolute judicial immunity. Although a

district court’s denial of a 12(b)(6) motion generally is not

a reviewable final order, the denial of a claim of absolute

judicial immunity is immediately appealable under the

collateral order doctrine and we review the district

court’s denial de novo. Figueroa v. United States, 7 F.3d

1405, 1408 (9th Cir.1993); Nixon v. Fitzgerald, 457 U.S. 731,

741-43, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982). On review,

the facts alleged in the complaint are assumed to be true

and are construed in the light most favorable to the

plaintiff. Jensen v. Oxnard, 145 F.3d 1078, 1082 (9th

Cir.1998). “[A] complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.” Conley v.

Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

ee Meret eo na MeN R

App. 5

It is well settled that judges are generally immune

from civil liability under section 1983. Mireles v. Waco, 502

U.S. 9, 9-10, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991) (citing

long line of cases acknowledging that “generally, a judge

is immune from a suit for money damages.”). “Although

unfairness and injustice to a litigant may result on occa-

sion, ‘it is a general principle of the highest importance to

the proper administration of justice that a judicial officer,

in exercising the authority vested in him, shall be free to

act upon his own convictions, without apprehension of

personal consequences to himself.’ ” Id. at 10, 112 S.Ct.

286 (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20

L.Ed. 646 (1871)). A judge is not deprived of immunity

because he takes actions which are in error, are done

maliciously, or are in excess of his authority. Stump v.

Sparkman, 435 U.S. 349, 355-56, 98 S.Ct. 1099, 55 L.Ed.2d

331 (1978). The rationale for granting judges immunity

from liability for even intentional and malicious conduct

while acting in their judicial capacity is that judges

should be free to make controversiai decisions and act

upon their convictions without fear of personal liability.

Id. at 363-64, 98 S.Ct. 1099. The concern for principled and

fearless decision-making forms the basis for judicial

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

18 L.Ed.2d 288 (1967). Absolute judicial immunity, how-

ever, is only granted when essential to protect the integ-

rity of the judicial process. Forrester v. White, 484 U.S. 219,

224-29, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (noting that

courts have been hesitant to find or extend absolute

official immunity). There are two situations in which

judges are not absolutely immune from liability arising

out of official conduct. “First, a judge is not immune from

App. 6

liability for nonjudicial actions, i.e., actions not taken in

the judge’s judicial capacity. Second, a judge is not

immune for actions, though judicial in nature, taken in

the complete absence of all jurisdiction.” Mireles, 502 U.S.

at 11-12, 112 S.Ct. 286 (citations omitted); see also, Schuc-

ker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir.1988) (“A

judge loses absolute immunity only when he acts in the

clear absence of all jurisdiction or performs an act that is

not judicial in nature.”); Ashelman v. Pope, 793 F.2d 1072,

1075 (9th Cir.1986) (en banc) (“A judge lacks immunity

where he acts in the clear absence of all jurisdiction, or

performs an act that is not judicial in nature.”) (internal

quotation marks and citations omitted).

The district court found that appellants were not

entitled to judicial immunity because the challenged

action, their decision to constructively terminate Meek,

was an administrative rather than a judicial act. “[T]he

factors determining whether an act by a judge is a ‘judi-

cial’ one relate to the nature of the act itself, i.e., whether

it is a function normally performed by a judge, and to the

expectations of the parties, i.e., whether they dealt with

the judge in his judicial capacity.” Stump, 435 U.S. at 362,

98 S.Ct. 1099.

A state court judge is generally not entitled to abso-

lute immunity from liability arising out of a decision to

fire a subordinate judicial employee because the decision

is not a judicial or adjudicative act, but rather an adminis-

trative one. Forrester, 484 U.S. at 229, 108 S.Ct. 538. In

Forrester, a former probation officer filed a damage action

against a state judge alleging that the judge had demoted

and fired her on account of her gender in violation of the

Equal Protection Clause of the Fourteenth Amendment.

App. 7

In determining the scope of judicial immunity, the Court

stressed that the focus must be on the function that the

immunity protects. Id. at 227, 108 S.Ct. 538. Judges are

granted absolute immunity for their judicial actions in

order to safeguard independent and principled judicial

decision making. Id. at 226-27, 108 S.Ct. 538. Although a

judge’s employment decisions “may be essential to the

very functioning of the courts,” they are not the type of

decisions that traditionally have been regarded as judicial

acts meriting absolute immunity. Id. at 228-29, 108 S.Ct.

538. The Court noted that there was no principled reason

for according judges absolute immunity for administra-

tive personnel decisions when executive branch officials

are not accorded absolute immunity for their employ-

ment decisions. Id. at 229-30, 108 S.Ct. 538. The Court

found that the danger of judges being deflected from the

effective performance of their duties by the threat of suit

from disgruntled employees was not great enough to

justify the extension of absolute judicial immunity to

these situations. Id. at 230, 108 S.Ct. 538.

Appellants argue that Forrester is distinguishable

because a court commissioner, unlike a probation officer,

plays an inherent role in the judicial decision making

process. Due to the judicial nature of the duties assigned

to a court commissioner, appellants argue, the decision to

fire a court commissioner is inherently judicial. Appel-

lants, however, can point to no case in which a court

evaluated the nature of the services provided by a fired

employee to determine whether the decision to terminate

was judicial. Moreover, the cases upon which appellants

rely for the proposition that some employment decisions

App. 8

are so closely related to the judicial decision-making pro-

cess that they are judicial acts do not provide real support

for this contention. For example, appellants cite Cameron

v. Seitz, 38 F.3d 264 (6th Cir.1994), for the proposition that

the appointment of certain personnel is an inherent part

of the judicial decision-making process. In Seitz, the Sixth

Circuit found that a probate judge who refused to con-

sider a probate caseworker’s recommendations on the

disposition of particular cases, reassigned the employee’s

cases to other caseworkers, and barred the employee

from appearing in his courtroom was absolutely immune

from civil liability for claims arising out of this conduct.

Id. at 270-72. In deciding that the contested actions were

judicial, the Sixth Circuit did not focus on the role that

the caseworker played in the judicial process. Instead, the

court focused on the nature of the challenged actions and

found that the actions involved either the disposition of

particular cases or control of the judge’s courtroom. Id. at

271-72. Because both of these actions are inherently judi-

cial in nature, the court ruled that the probate judge was

shielded by judicial immunity. Id.

Similarly, in New Alaska Development Corp. v.

Guetschow, 869 F.2d 1298 (9th Cir.1989), upon which

appellants also rely, we held that the appointment of a

receiver for a particular case was a judicial act. Again, we

focused on the fact that the appointment at issue was

made in the context of a pending case and in the course

of the judge’s dealing with the parties in his judicial

capacity. Id. at 1302. In making the determination that the

judge was acting in his judicial capacity, our decision

turned on the nature of the judge’s action not on the role

that the receiver played in the judicial process.

App. 9

A review of the federal cases describing the ambit of

judicial immunity indicates that, in determining whether

a particular action is judicial in nature, a court needs to

focus on the relationship between the action and the

adjudicative process. In New Alaska, we identified the

following factors as relevant to the determination of

whether a particular act is judicial in nature:

2 Following are examples of cases in which courts have

found a challenged action to be judicial in nature: Mireles, 502

U.S. at 12-13, 112 S.Ct. 286 (judge’s action of ordering the police

to bring an attorney before him was judicial); Stump, 435 U.S. at

362-64, 98 S.Ct. 1099 (judge’s approval of a mother’s ex parte

petition to have her “somewhat retarded” daughter sterilized

was judicial); Bradley, 80 U.S. (13 Wall.) at 354 (disbarring an

attorney as a sanction is a judicial action); Burns v. Reed, 500 U.S.

478, 492, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (issuance of a

search warrant is unquestionably a judicial act); Ireland v. Tunis,

113 F.3d 1435 (6th Cir.1997) (issuance of an arrest warrant is a

judicial act); Crooks v. Maynard, 913 F.2d 699 (9th Cir.1990) (a

judge’s decision to hold two employees in contempt of court is a

judicial act).

Following are examples of cases in which courts have found

a judge’s action to be non-judicial and therefore not protected

by judicial immunity: Richardson v. Koshiba, 693 F.2d 911 (9th

Cir.1982) (act of appointing state judges involves an executive

not a judicial act); Goodwin v. Circuit Court of St. Louis County,

Mo., 729 F.2d 541 (8th Cir.1984) (decision to remove a hearing

officer was an administrative rather than a judicial act); Guercio

v. Brody, 814 F.2d 1115 (6th Cir.1987) (judge not shielded by

judicial immunity for act of firing confidential personal

secretary); McMillan v. Svetanoff, 793 F.2d 149 (7th Cir.1986)

(firing court reporter is not a judicial act); Harper v. Merckle, 638

F.2d 848 (5th Cir.1981) (holding a contempt proceeding and

ordering plaintiff incarcerated were not judicial acts where

controversy that led to incarceration did not center around any

matter pending before the judge, but around domestic problems

of plaintiff’s former wife who worked at the courthouse).

App. 10

(1) the precise act is a normal judicial function;

(2) the events occurred in the judge’s cham-

bers;

(3) the controversy centered around a case

then pending before the judge; and (4) the

events at issue arose directly and immediately

out of a confrontation with the judge in his or

her official capacity.

New Alaska, 869 F.2d at 1302 (citing Ashelman v. Pope, 793

F.2d at 1075-76). As the district court correctly noted,

consideration of these factors here indicates that the chal-

lenged action was not a judicial action. The district court

found:

First, the decision to terminate plaintiff was an

administrative decision, rather than a judicial

act, because it involved the termination of an

employee, and not a decision in a matter pend-

ing before the court. Second, although it is

unclear whether the vote to terminate plaintiff

took place in a judge’s chambers, it did not

occur while the court was in session. Third, the

controversy centered, not on a case, but on

plaintiff’s efforts to seek the same judicial office

as then-Commissioner Wojcik in the April, 1996

election. Finally, according to the allegations of

the complaint, the decision to terminate plaintiff

was a response to his campaign for judicial

office and had nothing to do with plaintiff’s

performance or decision in a particular case.

Meek, 982 F.Supp. 1410, 1417 (C.D.Cal.1997) (internal cita-

tions omitted). The district court did not err in finding

that an evaluation of the New Alaska factors indicates that

it is not essential to insulate judges’ employment deci-

sions regarding court commissioners in order to protect

App. 11

the integrity of the judicial process. Appellants’ decision

to fire a subordinate judicial employee is an administra-

tive decision; the district court did not err in finding that

appellants are not entitled to judicial immunity for such

actions.

B. “Absolute Political Immunity” Jurisdiction

Appellants claim that we have jurisdiction to review

the district court’s order denying their motion to dismiss

based on a claim of “absolute political immunity” under

the collateral order doctrine. The collateral order doctrine

allows an appellate court to hear interlocutory appeals

under 28 U.S.C. § 1291 from a “small class [of orders]

which finally determine claims of right separable from,

and collateral to, rights asserted in the action, too impor-

tant to be denied review and too independent of the

cause itself to require appellate consideration be deferred

until the whole case is adjudicated.” Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93

L.Ed. 1528 (1949). Orders denying a claim of immunity

are generally immediately appealable where the immu-

nity guarantees a right not to stand trial. See, e.g., Digital

Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863,

870-71, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Alaska v.

United States, 64 F.3d 1352, 1354-55 (9th Cir.1995).

3 Tne district court also found that appellants acted in

complete absence of jurisdiction when they fired Meek and that

therefore they were not entitled to judicial immunity for this

action. Because the decision to fire a subordinate employee is

not a judicial act, we do not reach this issue.

App. 12

The Supreme Court has stressed, however, that the

collateral order doctrine is a narrow exception to the

general rule “that a party is entitled to a single appeal, to

be deferred until final judgment has been entered, in

which claims of district court error at any stage of the

litigation may be ventilated.” Digital Equipment, 511 U.S.

at 868, 114 S.Ct. 1992. Jurisdiction of this court does not

depend upon a party’s ability to characterize a right as a

“right not to stand trial” as “virtually every right that

could be enforced appropriately by pretrial dismissal

might loosely be described as conferring a ‘right not to

stand trial.’ ” Id. at 873, 114 S.Ct. 1992. To assess whether

we have jurisdiction to review the district court’s resolu-

tion of this issue under the collateral order doctrine, we

focus on the nature of the right asserted by appellants.

Appellants claim that because Meek served in a pol-

icy-making position, they have “absolute political immu-

nity” from liability arising out of their decision to fire

him for political reasons. They in essence aver that Meek

does not have a First Amendment right not to be fired

from the position of court commissioner for political rea-

sons and that therefore they can not be held liable for

taking such action. Appellants do not explain, however,

how Meek’s lack of a protected right clothes them with a

right not to stand trial. As Meek correctly avers, this

claim of political immunity, as presented by appellants, is

a right to prevail at trial rather than a right to be free

from trial.

Appellants contend that case law establishes that

they have a right not to stand trial for claims arising out

of their decision to fire a public employee who holds a

policy-making position. The cases on which appellants

App. 13

rely, however, are distinguishable from the present case.

For example, neither Fazio v. San Francisco, 125 F.3d 1328

(9th Cir.1997), nor Newman v. Voinovich, 986 F.2d 159 (6th

Cir.1993), involved interlocutory appeals where appellate

jurisdiction was premised on the collateral order doc-

trine; both cases: rather involved appeals from a district

court decision to grant a 12(b)(6) motion. In Fazio, the

district court certified the First Amendment claim for

immediate appeal and this court granted Fazio’s motion

for interlocutory appeal. This court’s jurisdiction in the

case was therefore under 28 U.S.C. § 1292(b) rather than

28 U.S.C. § 1291. Fazio, 125 F.3d at 1330. Newman involved

an appeal from a final order reviewable pursuant to 28

U.S.C. § 1291 because the challenged district court order

dismissed all of plaintiff’s claims. Newman, 986 F.2d at

160.

Moreover, neither Fazio nor Newman hold that an

official is immune from liability arising out of a decision

to fire a policy-making employee. In Fazio, we found that

a public employee who holds a policy-maker position can

be fired for political reasons without offending the Con-

stitution and that we did not need to address the issue of

whether the defendants were entitled to “qualified immu-

nity” because there was no First Amendment violation.

125 F.3d at 1334. Similarly, the Sixth Circuit in Newman

found that the First Amendment did not prevent a gover-

nor from considering political affiliations in making judi-

cial appointment because judges are policy-makers. 986

F.2d at 163. Again, the court did not premise its decision

on a finding that the governor was immune from liability

but rather that the governor’s actions did not result in a

First Amendment violation.

App. 14

A natural reading of appellants’ claim of absolute

political immunity indicates that appellants are claiming

a right to succeed at trial rather than a right not to stand

trial. Therefore, this claim is a defense the denial of which

is not reviewable under the collateral order doctrine. See

e.g., Alaska, 64 F.3d at 1355-56; Digital Equipment, 511 U.S.

at 871-77, 114 S.Ct. 1992; Van Cauwenberghe v. Biard, 486

U.S. 517, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988).

AFFIRMED IN PART and DISMISSED IN PART.

COSTS TO APPELLEE. CONCURRING OPINION

FERGUSON, Circuit Judge, dissenting:

I dissent from the majority’s disposition of this case

for one simple reason: Donald Meek was not construc-

tively fired. Therefore, he cannot maintain a § 1983 action

in federal district court, and we must dismiss his case.

In § 1983 actions, the preliminary focus must be

whether or not the alleged wrongful act involved state

action. Ouzts v. Maryland Nat'l Ins. Co., 505 F.2d 547, 550

(1974) (en banc). If it does not, then we as federal courts

do not have jurisdiction, see 28 U.S.C. § 1343(a)(3), and

we need not even pass on the immunity issues reached in

the majority’s opinion. In § 1983 claims, we look to state

law to determine if there in fact has been state action.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct.

2744, 73 L.Ed.2d 482 (1982) (“[T]he deprivation must be

caused by the exercise of some right or privilege created

by the State.”). California law clearly states that a major-

ity of the twenty-one municipal court judges in Riverside

are the only people who have the authority to hire and

fire court commissioners such as Meek. Cal. Gov’t Code

§ 72192 (providing that the commissioner “shall be

et FSG Bh 0 ES

App. 15

appointed by and hold office at the pleasure of a majority

of the judges . . . ”). Individual judges may become upset

with a commissioner for personal reasons, such as the

politics in this case. But the state has decreed that indi-

vidual judges do not have the right to terminate the

commissioners; rather, state action must come from the

body of judges as a whole. District Judge Paez was cor-

rect in finding that “Judge Walker had no authority to

terminate plaintiff solely on his own vote because plain-

tiff served at the pleasure of a majority of the judges of

the municipal courts in Riverside County.” See Meek v.

County of Riverside, 982 F.Supp. 1410, 1418 (C.D.Cal.1997).

Without any action here by the entire body of municipal

court judges, there is no state action, and we need not

even address the immunity issues.

Donald Meek’s resignation is not material in this case

and cannot form the basis of a constructive discharge

claim under § 1983 because no rational juror could con-

clude that Meek acted reasonably in resigning when only

one of the eleven people needed to fire him had acted. See

Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th

Cir.1987) (requiring resignation to be reasonable in order

to prove a constructive firing claim). Meek’s unreason-

able resignation and lack of understanding of his rights

under California law do not create state action or a con-

stitutional tort, and he has no § 1983 claim. I therefore

respectfully dissent.

App. 16

Order of the United States District Court for the Central

District of California

Donald L. MEEK, Plaintiff,

COUNTY OF RIVERSIDE; Albert J. Wojcik; and

Rodney Walker, Defendants.

No. CV 97-1179RAP(AJWX).

United States District Court,

C.D. California.

Sept. 2, 1997.

George W. Shaeffer, Jr., Irvine, CA, for Plaintiffs.

Timothy T. Coates, Marc J. Poster, Greines Martin

Stein & Richland, Beverly Hills, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN

PART DEFENDANTS’ MOTION TO DISMISS

PAEZ, District Judge.

Introduction

Plaintiff Donald L. Meek brings this action against

the County of Riverside and Municipal Court Judges

Albert J. Wojcik and Rodney Walker alleging that defen-

dants constructively terminated him from his position as

a Commissioner of the Riverside Consolidated Superior

and Municipal Courts. Plaintiff alleges that he was forced

to retire in retaliation for seeking election to the same

Municipal Court position as then-Commissioner Wojcik

in the April, 1996, judicial elections. Plaintiff seeks relief

App. 17

under 42 U.S.C. § 1983 for the alleged infringement of his

First Amendment right to campaign for public office.

Pending before the Court is defendants’ motion to

dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to

state a claim. The County of Riverside contends that it is

not responsible for the conduct of municipal court judges

because they are state officials, and the defendant judges

assert that they are entitled to both judicial and political

immunity. Upon consideration of the parties’ moving,

opposition and reply papers, and the oral arguments of

counsel, the motion to dismiss the action against the

County of Riverside is properly granted. The individual

defendants, however, are not entitled to judicial immu-

nity for the acts alleged in the complaint, and whether the

individual defendants are entitled to political immunity

cannot be resolved on the record before the Court.

Accordingly, defendants’ motion to dismiss is granted in

part and denied in part.

Il.

Factual Background

Plaintiff alleges that he served as a Commissioner of

the Riverside Consolidated Superior and Municipal

Courts from May, 1989, until defendants allegedly forced

him to retire in April, 1996. Plaintiff alleges that he was

primarily assigned to the Mt. San Jacinto Judicial District,

one of several municipal judicial districts in Riverside

County. According to plaintiff, in September, 1995, he

learned that Judges Peterson and McCarthy intended to

retire in March and April of 1996, respectively, creating

two vacancies, including one on the Mt. San Jacinto

App. 18

Municipal Court. Plaintiff alleges that he approached

then-commissioner Wojcik about an arrangement

whereby plaintiff would support Wojcik in the April,

1996, non-partisan, election to replace Judge Peterson,

and Wojcik would support plaintiff in his effort to obtain

an appointment by Governor Wilson to replace Judge

McCarthy.

According to plaintiff, it soon became apparent to

him that Wojcik would not support him in his effort to

obtain a gubernatorial appointment to replace Judge

McCarthy. Furthermore, plaintiff allegedly learned that

Judge Curtis R. Hinman had written a letter to Governor

Wilson supporting Sherrill Nielsen, Judge Walker’s friend

and associate, to replace Judge McCarthy. Recognizing

that he was unlikely to obtain an appointment to replace

Judge McCarthy, plaintiff sought election to the judicial

position created by Judge Peterson’s retirement and, con-

sequently, campaigned against then-Commissioner

Wojcik. During the campaign, Judge Walker allegedly

stated that plaintiff was his political enemy and that if

plaintiff lost the election, Judge Walker would terminate

plaintiff from his position as Commissioner.

On April 3, 1996, defendant Wojcik was elected judge

of the Mt. San Jacinto Municipal Court. On April 4, 1996,

then-commissioner Wojcik, Judge Walker, and Judge Hin-

man met regarding plaintiff’s termination. At that meet-

ing, Wojcik and Judge Walker voted to terminate plaintiff

as Commissioner; Judge Hinman abstained. At the time

of the vote, defendant Wojcik had not yet taken his oath

of office as a municipal court judge.

App. 19

On April 8, 1996, Judge Hinman allegedly informed

plaintiff that he should resign or be fired. Judge Hinman

told plaintiff that he could have a hearing before Judge

Wojcik and Judge Walker, but that “it would do no good,

because the outcome would be the same.” Complaint,

{ 18. According to plaintiff, he elected to retire effective

April 8, 1996. Plaintiff alleges that defendants forced him

to retire, thereby constructively terminating his employ-

ment.

III.

Discussion

A. Standard

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests

the legal sufficiency of the claims asserted in the com-

plaint. Accordingly, the scope of review on a motion to

dismiss for failure to state a claim is limited to the con-

tents of the complaint. Clegg v. Cult Awareness Network, 18

F.3d 752, 754 (9th Cir.1994). The court may, however,

consider exhibits submitted with the complaint and mat-

ters that may be judicially noticed pursuant to Federal

Rule of Evidence 201. Hal Roach Studios v. Richard Feiner &

Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990); Emrich v.

Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir.1988). “[A]

document is not ‘outside’ the complaint if the complaint

specifically refers to the document and if its authenticity

is not questioned.” Branch v. Tunnell, 14 F.3d 449, 453 (9th

Cir.1994).

Dismissal under Rule 12(b)(6) may be based either on

the “lack of a cognizable legal theory” or on “the absence

App. 20

of sufficient facts alleged under a cognizable legal the-

ory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699

(9th Cir.1990). The issue on a motion to dismiss for failure

to state a claim is not whether the claimant will ulti-

mately prevail but whether the claimant is entitled to

offer evidence to support the claims asserted. Gilligan v.

Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997).

When evaluating a Rule 12(b)(6) motion, the court must

accept all material allegations in the complaint as true

and construe them in the light most favorable to the non-

moving party. Barron v. Reich, 13 F.3d 1370, 1374 (9th

Cir.1994). The court is not required, however, to accept

“conclusory legal allegations cast in the form of factual

allegations if those conclusions cannot reasonably be

drawn_from the facts alleged.” Clegg, 18 F.3d at 754-55.

Rule 12(b)(6) must be read in conjunction with Rule

8(a), which requires “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 5A

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1356 (1990). The notice pleading standard set

forth in Rule 8 establishes “a powerful presumption

against rejecting pleadings for failure to state a claim.”

Gilligan, 108 F.3d at 248 (citations omitted). Consequently,

a court may not dismiss a complaint for failure to state a

claim unless “it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In keeping

with this liberal pleading standard, the district court

should grant the plaintiff leave to amend if the complaint

App. 21

can possibly be cured by the inclusion of additional fac-

tual allegations. Doe v. United States, 58 F.3d 494, 497 (9th

Cir.1995).

B. Application

1. The County of Riverside Is Not Responsible for

the Conduct of Municipal Court Judges

The County of Riverside correctly argues that Judge

Walker and then-Commissioner Wojcik were “state offi-

cials” at the time of the acts alleged, and that the county

cannot be held responsible for their conduct. A munici-

pality may only be held liable under § 1983 for acts “for

which the municipality itself is actually responsible, ‘that

is, acts which the municipality has officially sanctioned or

ordered.’ ” City of St. Louis v. Praprotnik, 485 U.S. 112, 123,

108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988). In addition, only

municipal officials with “final policymaking authority”

may subject the municipality to § 1983 liability. Id.

Whether a particular official has such authority is a ques-

tion of state law. Id. Finally, a municipality will only be

subject to liability where the alleged violation occurred

pursuant to a policy adopted by the officials responsible

for making policy in that area. Id.; see also McMillian v.

Monroe County, Alabama, ___ U.S. ___, __, 117 S.Ct. 1734,

1736-37, 138 L.Ed.2d 1 (1997) (applying test from Praprot-

nik). In the context of determining whether a municipality

was liable for certain acts of a city judicial officer, the

Ninth Circuit recently explained that “[t]he crucial factor

is whether under state law the acts in question were

iii

App. 22

performed under the municipality’s or the state’s author-

ity.” Eggar v. City of Livingston, 40 F3d 312, 314 (9th

Cir.1994).

Here, the analysis is necessarily somewhat perfunc-

tory because the Ninth Circuit has explicitly held that the

California municipal courts are an arm of the state. See

Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir.1995). “It is

undisputed that the State Constitution and statutes give

the State, not the counties, direction and control over

municipal court judges.” Id. (quoting County of Sonoma v.

Workers’ Compensation Appeals Board, 222 Cal.App.3d 1133,

272 Cal.Rptr. 297 (1990)). Most significantly, it is the state

that grants municipal court judges discretion to hire and

fire court commissioners. Cal. Gov’t.Code §§ 72190,

74135.6.

In sum, “counties have absolutely no influence or

control over the manner in which a municipal court judge |

[or commissioner] performs his or her duties.” County of

Sonoma, 222 Cai.App.3d at 1137, 272 Cal.Rptr. 297. Conse-

quently, defendants’ alleged acts could only have been

authorized by the State of California, and the County of |

Riverside cannot be held liable for those acts under |

§ 1983.1 The motion to dismiss plaintiff’s claims against

"er

the County of Riverside is, therefore, GRANTED.

1 Although municipal court judges and commissioners

must be treated as state officials, the Eleventh Amendment

precludes plaintiff from seeking damages against California or

against Judges Walker and Wojcik in their official capacities.

“The United States Supreme Court has dictated that, unlike

counties and municipalities, state governments, and their arms,

officers, and instrumentalities, are generally immune from

private lawsuit in federal court by virtue of the Eleventh

Amendment to the United States Constitution.” Mumford v.

EEE

App. 23

2. Judges Walker and Wojcik Are Not Entitled

to Judicial Immunity

Judges are absolutely immune from suit under § 1983

with only two exceptions. Mireles v. Waco, 502 U.S. 9, 11,

112 S.Ct. 286, 287-88, 116 L.Ed.2d 9 (1991). “First, a judge

is not immune from liability for nonjudicial actions, i.e.,

actions not taken in the judge’s judicial capacity. [ ] Sec-

ond, a judge is not immune for actions, though judicial in

nature, taken in the complete absence of all jurisdiction.”

Id. at 11-12, 112 S.Ct. at 288 (citations omitted) Here,

defendants are not entitled to immunity both because

their alleged actions were not taken in their judicial

capacities, and because, even if defendants’ actions were

judicial in nature, they were taken in the complete

absence of all jurisdiction.

a. The Acts of Judge Walker and then-Commis-

sioner Wojcik Were Administrative Rather

than Judicial in Nature

In evaluating whether a judge’s actions are judicial in

nature, one must look at “the nature of the function

performed — adjudication — rather than the identity of the

actor who performed it — a judge.” Forrester v. White, 484

Basinski, 105 F.3d 264 (6th Cir.1996) (citing Mt. Healthy Sch. Dist.

v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471

(1977), superseded by statute on other grounds as stated in Rivera v.

U.S., 924 F.2d 948 (9th Cir.1991)); see also Franceschi, 57 F.3d at

831. (9th Cir.1995) (“Given the extensive control exercised by

the state over the municipal courts. . . . the municipal court is

protected by the Eleventh Amendment”)

App. 24

U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Administra-

tive decisions terminating subordinate employees,

although “important in providing the necessary condi-

tions of a sound adjudicative system . . . [are] not them-

selves judicial or adjudicative.” Id. at 229, 108 S.Ct. at 545.

In Forrester, a state court judge had hired the plaintiff as a

probation officer to prepare presentence reports for adult

offender cases and make recommendations for the dispo-

sition and placement of juvenile defendants. Id. The

plaintiff was promoted to a supervisory position but

demoted a year later and soon afterwards discharged. Id.

The plaintiff filed suit alleging sex discrimination in vio-

lation of the Equal Protection Clause of the Fourteenth

Amendment. Id.

In considering whether the state court judge could

assert judicial immunity as a complete defense, the

Supreme Court stated that “[a]dministrative decisions,

even though they may be essential to the very function-

ing of the courts, have not . . . been regarded as judicial

acts.” Id. at 228, 108 S.Ct. at 544. Judges’ hiring decisions

are executive decisions, indistinguishable from “a district

attorney hiring or firing assistant district attorneys, or

. other executive branch official[s] responsible for

making such employment decisions. . . . [NJo one sug-

gests that they give rise to absolute immunity from lia-

bility in damages under § 1983.” Id. at 229, 108 S.Ct. at

545.

Federal court decisions subsequent to Forrester con-

firm the general rule that a judge’s act in terminating an

employee is administrative, rather than judicial, entitling

the judge to qualified immunity at best. See Mireles, 502

U.S. at 15, 112 S.Ct. at 289-90 (judge immune from suit for

App. 25

ordering police officers to bring public defender before

the judge); Franceschi v. Schwartz, 57 F.3d 828 (9th

Cir.1994) (judge entitled to judicial immunity because

issuance of bench warrants and orders to take violators

into custody are judicial acts); Rosenthal v. Justices of the

Supreme Court of California, 910 F.2d 561 (9th Cir.1990)

(judges have absolute immunity in deciding the qualifica-

tions of attorneys who will practice in their courts);

McMillan v. Svetanoff, 793 F.2d 149 (7th Cir.1986) (judge

not entitled to judicial immunity for firing court reporter

because act did not constitute judicial decision-making);

Cameron v. Seitz, 38 F.3d 264 (6th Cir.1994) (firing a secre-

tary is an administrative act, while transferring respon-

sibilities from one case worker to another is a judicial

act); Clark v. Campbell, 514 F.Supp. 1300 (W.D.Ark.1981)

(when a judge hires or fires county employees, the judge

is not exercising a judicial function). The established rule,

therefore, indicates that defendants are not entitled to

judicial immunity for their respective roles in plaintiff's

allegedly forced retirement.

Nonetheless, defendants offer several arguments in

support of their position that they are entitled to judicial

immunity. First, defendants rely on the Sixth Circuit’s

decision in Seitz, arguing that they are entitled to judicial

immunity because judges perform an inherently judicial

function when they exercise control over subordinate

judicial officers who participate in the decision-making

process. Defendants are correct that a court commissioner

can take evidence and make proposed findings on any

matter requested by a judge of the municipal court,

approve bonds, administer oaths, and take affidavits and

depositions. See Cal. Civ. Proc. Code § 259; Cal. Gov’t

App. 26

Code § 72190. These duties are judicial in nature and

judges properly exercise their judicial authority when

assigning these judicial tasks to subordinate judicial offi-

cers. Seitz, 38 F.3d at 271.

Seitz, however, presented a somewhat different set of

facts than those alleged by plaintiff. In Seitz, the judge

reassigned the plaintiff’s cases to another case worker,

making a decision about case management rather than

deciding whether the case worker should be fired. As the

Sixth Circuit explained, “when Seitz transferred [plain-

tiff’s] cases to another case worker, [Seitz] was control-

ling the proceedings in his courtroom and was therefore

entitled to immunity.” Id. at 272. By contrast, Judge

Walker and then-commissioner Wojcik were not involved

in any judicial proceedings when they allegedly forced

plaintiff to retire. The decision to terminate plaintiff was

an administrative decision involving a subordinate

employee, not a judicial decision involving resolution or

disposition of cases or other legal matters within the

jurisdiction of the municipal court.

Second, defendants contend that in order to maintain

an independent judiciary, judges’ hiring decisions should

not be chilled by potential liability arising from employ-

ment disputes. The Supreme Court has rejected this argu-

ment, concluding that although “there is considerable

force in this analysis, . . . it in no way serves to distin-

guish judges from other public officials who hire and fire

subordinates.” Forrester, 484 U.S. at 229-30, 108 S.Ct. at

545.

Third, defendants rely on New Alaska Development

Corp. v. Guetschow, 869 F.2d 1298, 1302 (9th Cir.1989),

App. 27

where the Ninth Circuit held that a judge was entitled to

judicial immunity for his appointment of a receiver to

oversee business assets in a pending case. Relying on New

Alaska, defendants argue that the decision to appoint a

court commissioner is essentially identical to the decision

to appoint a receiver. According to defendants, the only

distinction is that a court commissioner may be responsi-

ble for certain matters in a number of cases while a

receiver Oversees such matters in a single case. This argu-

ment takes the New Alaska holding out of context. The

issue in New Alaska was whether a judge could be deriva-

tively liable for the actions of the receiver he appointed

concerning the disposition of business assets in a marital

dissolution action. Id. at 1302. The New Alaska court found

that because the receiver was assisting the court with a

matter in a pending case, the appointing judge was enti-

tled to absolute immunity. Id. The New Alaska court did

not consider judicial immunity in the context of an

employment decision, and its ruling cannot be applied

here.

Nonetheless, the New Alaska decision is useful here

because the Ninth Circuit identified several factors a

court should consider in determining whether particular

conduct of a judicial officer is judicial in nature. Those

factors include whether: “(1) the precise act is a normal

judicial function; (2) the events occurred in the judge’s

chambers; (3) the controversy centered around a case

then pending before the judge; and (4) the events at issue

arose directly and immediately after a confrontation with

the judge in his or her official capacity.” Id.

Consideration of the New Alaska factors supports the

conclusion that the decision to terminate plaintiff was not

pO SESE Pon ee Ce a ee ee

App. 28

a judicial act. First, the decision to terminate plaintiff was

an administrative decision, rather than a judicial act,

because it involved the termination of an employee, and

not a decision in a matter pending before the court.

Second, although it is unclear whether the vote to termi-

nate plaintiff took place in a judge’s chambers, it did not

occur while the court was in session. See Forrester, 484

U.S. at 219, 108 S.Ct. at 538-40. Third, the controversy

centered, not on a case, but on plaintiff’s efforts to seek

the same judicial office as then-Commissioner Wojcik in

the April, 1996 election. Finally, according to the allega-

tions of the complaint, the decision to terminate plaintiff

was a response to his campaign for judicial office and had

nothing to do with plaintiff’s performance or decision in

a particular case. Thus, consideration of the factors iden-

tified by the Ninth Circuit in New Alaska, also leads to the

conclusion that the defendant judges are not entitled to

judicial immunity.

Finally, defendants assert that judicial immunity is

not limited to case-specific decisions. Defendants point to

the fact that judges have absolute immiunity in determin-

ing the qualifications of attorneys to practice law, a task,

according to defendants, that is not too different from

hiring and firing court commissioners. See Rosenthal v.

Justices of the Supreme Court of California, 910 F.2d 561, (9th

Cir.1988). Determining the qualifications of attorneys for

admission to the bar, however, differs significantly from

hiring a subordinate judicial employee. As the Supreme

Court stated in Forrester, “legislative, rather than judicial

immunity, furnish[es] the appropriate standard . . . when

promulgating the Bar Code.” Id. at 228, 108 S.Ct. at 545

(citing Supreme Court of Virginia v. Consumers Union of

App. 29

United States, Inc., 446 U.S. 719, 734-37, 100 S.Ct. 1967,

1975-77, 64 L.Ed.2d 641 (1980)). When judges oversee the

qualifications of attorneys, they “[engage] in an act of

rule-making [rather than] adjudication.” Id. at 228, 108

S.Ct. at 545. Hiring or firing court employees is not a

rule-making function, and cases dealing with the supervi-

sion or qualifications of attorneys are therefore of no help

to defendants.

In short, Judge Walker and Judge Wojcik are not

entitled to absolute judicial immunity because their

alleged actions in voting to terminate plaintiff, thereby

allegedly forcing plaintiff to retire, were administrative

rather than judicial in nature.

b. Judges Walker and Wojcik Acted in the

Complete Absence of Jurisdiction

Because the defendant judges are not entitled to judi-

cial immunity under the first prong of the judicial immu-

nity test, the Court need not consider whether defendants

acted in the complete absence of all jurisdiction. Nonethe-

less, in an abundance of caution, the Court addresses the

second prong of the test and finds that the individual

defendants acted without jurisdiction to do so when they

allegedly voted to terminate plaintiff. See Mireles, 502 U.S.

at 13-15, 112 S.Ct. at 289.

By allegedly voting to terminate plaintiff on April 4,

1996, nineteen days before then-Commissioner Wojcik

took his oath of office as a judge, both defendants acted

beyond the scope of their authority. Plaintiff held office at

the pleasure of a majority of the judges of Riverside

App. 30

County. See Cal. Gov’t Code §§ 72190, 74135.6. Conse-

quently, then—Commissioner Wojcik lacked authority to

vote to terminate plaintiff because he was not yet offi-

cially a municipal court judge at the time of the vote.

Likewise, Judge Walker had no authority to terminate

plaintiff solely on his own vote because plaintiff served at

the pleasure of a majority of the judges of the municipal

courts in Riverside County.

In Mireles, the Supreme Court explained that by

allegedly ordering police officers to bring a public

defender before him, Judge Mireles acted in excess of his

authority. Id. That act was not in excess of Judge Mireles’

jurisdiction, however, because it was “taken in the very

aid of the judge’s jurisdiction over a matter before him[.]”

Id. By contrast, Judges Walker and Wojcik’s alleged

actions in voting to terminate plaintiff were not taken in

aid of their jurisdiction over matters pending before

them. Because the individual defendants’ alleged actions

were outside the scope of their authority, and because

those actions were not taken in aid of their jurisdiction in

matters pending before them, defendants alleged actions

were taken in the complete absence of jurisdiction.”

2 Defendants contend that they did not act without

jurisdiction when they voted to terminate plaintiff because

plaintiff elected to retire. Plaintiff alleges, however, that Judge

Hinman informed him of the vote and told him that he could

appear before the same judges for a hearing, but that “it would

not make any difference because the outcome would be the

same.” Complaint, { 19. Taking the alleged facts as true, plaintiff

could reasonably have believed that he would be fired if he did

not retire. See Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th

Cir.1987) (action for constructive termination is based upon

reasonable perceptions of plaintiff, not intent of defendants).

App. 31

Accordingly, Judges Walker and Wojcik are not entitled to

absolute judicial immunity.

3. Political Immunity

Judge Walker and Judge Wojcik’s assertion that they

are entitled to political immunity raises issues concerning

First Amendment protection of both political affiliation

and free speech. In O’Hare v. City of Northlake, 518 U.S.

712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), the Supreme

Court reiterated the separate tests for protection of politi-

cal affiliation and free speech, but noted that both tests

will typically require case-by-case analysis in order to

determine the reasonableness of the government action.

Id. at__—_— - __, 116 S.Ct. at 2357-58.

Where a government employer has allegedly termi-

nated a public employee on the basis of the employee’s

political affiliation, “the question is whether the hiring

authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of

the public office involved.” Id. at __, 116 S.Ct. at 2357

(quoting Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287,

1294-95, 63 L.Ed.2d 574 (1980)); see also Elrod v. Burns, 427

U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).

On the other hand, where an employer takes adverse

action against a public employee in response to the

employee’s exercise of his or her right of free speech, the

controlling cases “call for a different, though related

inquiry,” and courts apply the balancing test from Picker-

ing v. Board of Ed. Of Township High School Dist. 205, Will

Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

Under Pickering, the court must strike a balance “between

App. 32

the interests of the [employee], as a citizen, in comment-

ing upon matters of public concern, and the interests of

the State, as an employer, in promoting the efficiency of

the public services it performs through its employees.”

Pickering, at 568, 88 S.Ct. at 1734-35; see also Board of

County Commissioners v. Umbehr, 518 U.S. 668, __, 116

S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996) (reaffirming Pick-

ering test). The threshold question under Pickering is

“whether the speech [in question] may be fairly charac-

terized as constituting speech on a matter of public con-

cern.” Thomas, 881 F.2d at 830 (quoting Connick v. Myers,

461 U.S. 138, 146, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708

(1983)).

In applying the Pickering balancing test, a court must

consider:

whether the speech (i) impairs discipline or con-

trol by superiors, (ii) disrupts co-worker rela-

tions, (iii) erodes a close working relationship

premised on personal loyalty and confiden-

tiality, (iv) interferes with the speaker’s perfor-

mance of her or his duties, or (v) obstructs the

routine operation of the office.

Hyland v. Wonder, 972 F.2d 1129, 1139 (9th Cir.1992).

However, “when employee expression cannot be fairly

considered as relating to any matter of political, social, or

other concern to the community, government officials

should enjoy wide latitude in managing their offices.” Id.

at 1137; see also Weisbuch v. County of Los Angeles et al., 119

F.3d 778 (9th Cir.1997) (First Amendment protects

employee speech on matters of public concern, but does

not protect speech that only concerns internal office

affairs) Furthermore, the employee must prove that the

App. 33

speech in question was not only “constitutionally pro-

tected,” but that “it was a substantial or motivating factor

in the termination.” Umbehr, 518 U.S. at __, 116 S.Ct. at

2347.

After explaining the two tests concerning public

employees’ First Amendment rights to political affiliation

and free speech, respectively, the Supreme Court went on

to explain in O’Hare that “where specific instances of the

employee’s speech or expression, which require balanc-

ing in the Pickering context, are intermixed with a politi-

cal affiliation requirement,” it is inappropriate to apply

the “raw test of political affiliation,” and “the balancing

Pickering mandates will be inevitable.” Id. at__, 116 S.Ct.

at 2358.

The Ninth Circuit implicitly reached the same conclu-

sion in Thomas v. Carpenter, 881 F.2d 828 (9th Cir.1989).

There, the plaintiff, a sheriff’s lieutenant, brought a civil

rights action against the Sheriff after the Sheriff banned

him from attending departmental staff meetings and pol-

icy review sessions because he had challenged the Sheriff

in a non-partisan election. Id. at 829. Applying the Picker-

ing test for protection of free speech, the Ninth Circuit

explained that Elrod and Branti, “were not directly on

point because they address political patronage dismissals

based upon party loyalty. The election between Thomas

and Carpenter, however, was nonpartisan.” Thomas, 881

F.2d at 831. The Thomas court did note, however, that “the

government interest requirement in the affiliation cases is

also relevant in the employee speech cases.” Id. Here, as

in Thomas, the election between then-Commissioner

Wojcik and plaintiff was non-partisan and apparently

concerned office loyalty rather than political loyalty.

App. 34

Defendants point to several decisions holding that

political loyalty in the generic sense, like political party

affiliation, “is a valid justification for political patronage

dismissals.” Green v. Henley, 924 F.2d 185, 187 (10th

Cir.1991); see also Soelter v. King County, 931 F.Supp. 741,

746 (E.D.Wash.1996). In other words, “[p]olitical affilia-

tion refers to commonality of political purpose and sup-

port, not solely political party membership.” Green, 924

F.2d at 187 (citing Williams v. City of River Rouge, 909 F.2d

151, 153 n. 4 (6th Cir.1990)). In both Green and Soelter, the

courts applied the “raw test” of political affiliation. The

Supreme Court’s decision in O’Hare clarifies, however,

that where a public employee’s right to free speech or

expression is at issue, application of the pure political

affiliation test is inappropriate. Moreover, the Ninth Cir-

cuit explicitly held in Thomas that the Pickering balancing

test applies where a government employer has allegedly

taken adverse action against a public employee in

response to the employee’s unsuccessful campaign in a

non-partisan election. Thomas, 881 F.2d at 830. Accord-

ingly, although Green and Soelter are useful for purposes

of assessing the nature of the government’s interest in

non-partisan, political loyalty, this Court is bound to

apply the hybrid Pickering test described in O'Hare and

Thomas.

As in Green and Soelter, the Sixth Circuit in Mumford

v. Basinski, 105 F.3d 264 (6th Cir.1997), secently applied

the pure political affiliation test where a government

employer allegedly violated a public employee’s First

Amendment rights by terminating him on the basis of

political loyalty. In Mumford, however, the issues of politi-

cal-party affiliation and non-partisan, political loyalty

App. 35

were intertwined. Mumford, a member of the Democratic

Party, served as a referee for the domestic relations court

in Ohio. Mumford, 105 F.3d at 266. In 1988, the plaintiff

helped the incumbent judge, a Democrat, with his reelec-

tion bid against a Republican challenger, the defendant.

Id. at 266. Upon winning the election, the defendant

wrote plaintiff a letter stating that plaintiff’s employment

with the court would be terminated when defendant took

office. Id.

Applying a modified version of the Branti test, the

Sixth Circuit sought to determine “whether the hiring

authority [could] demonstrate that party affiliation [was]

an appropriate requirement for the effective performance

of the public office involved.” Id. at 270. The court con-

cluded that the duties of a court referee are inherently

political in character because they “entail a relationship

of confidence” between the court referee and the judges

whom the referee serves. Id. at 272. Accordingly, the court

found the position of court referee fell into three of four

categories of public occupations characterized as “politi-

cal” and, therefore, was subject to patronage consider-

ation under First Amendment jurisprudence. Despite the

clear involvement of political-party politics in the elec-

tions in the Ohio court system, the court did not explain

the role of party politics in its analysis.

Although Mumford is factually similar to the instant

case in many respects, the decision there is not in keeping

with the framework established in O’Hare and Thomas,

and this Court is bound to follow Supreme Court and

Ninth Circuit precedent. Accordingly, the Court must

apply the Pickering balancing test, as modified in O’Hare,

rather than the pure political affiliation test set forth in

App. 36

the Elrod and Branti line of cases. Extrapolating from

O’Hare, where “specific instances of the employee’s

speech and expressions are intermixed with a political

affiliation requirement,” the Pickering balancing test

applies and the inquiry is not limited to whether affilia-

tion, or loyalty is “an appropriate requirement for the

effective performance of the public office involved.”

O’Hare, 518 U.S. at __ - __, 116 S.Ct. at 2357-58.

Having explained the proper test to apply to deter-

mine whether Judge Walker and Judge Wojcik are entitled

to political immunity, the Court concludes that it lacks

sufficient factual information to determine, on the limited

record before it, whether the government’s interest in

court efficiency and non-partisan, political loyalty out-

weighs plaintiff’s First Amendment rights. See Thomas,

881 F.2d at 831-32 (whether Thomas was in position to

thwart goals of in-party and impede “effective implemen-

tation of general departmental policy,” could not be

determined on motion to dismiss); Weisbuch, 119 F.3d 778,

(“Because factual development is often necessary before

the Pickering factors can be applied, balancing typically

cannot be performed on a 12(b)(6) motion.”).

IV.

Conclusion

For the foregoing reasons the County of Riverside’s

motion to dismiss is GRANTED. Judge Walker and Judge

Wojcik’s motion to dismiss on the basis of absolute judi-

cial immunity is DENIED. Judge Walker and Judge

App. 37

Wojcik’s motion to dismiss on grounds of political immu-

nity is DENIED without prejudice to defendants’ right to

raise the issue on a motion for summary judgment.

IT IS SO ORDERED.

App. 38

Statutes Involved

California Constitution, article VI, section 22:

The Legislature may provide for the appointment by trial

courts of record of officers such as commissioners to

perform subordinate judicial duties.

California Code of Civil Procedure section 259:

Subject to the supervision of the court, every court com-

missioner shall have power to do all of the following:

(a) Hear and determine ex parte motions for orders and

alternative writs and writs of habeas corpus in the supe-

rior court for which the court commissioner is appointed.

(b) Take proof and make and report findings thereon as

to any matter of fact upon which information is required

by the court. Any party to any contested proceeding may

except to the report and the subsequent order of the court

made thereon within five days after written notice of the

court’s action. A copy of the exceptions shall be filed and

served upon opposing party or counsel within the five

days. The party may argue any exceptions before the

court on giving notice of motion for that purpose within

10 days from entry thereof. After a hearing before the

court on the exceptions, the court may sustain, or set

aside, or modify its order.

actions or proceedings, and determine »bjections to the

bonds and undertakings.

App. 39

(d) Administer oaths and affirmations, and take affi-

davits and depositions in any action or proceeding in any

of the courts of this state, or in any matter or proceeding

whatever, and take acknowledgments and proof of deeds,

mortgages, and other instruments requiring proof or

acknowledgment for any purpose under the laws of this

or any other state or country. |

(e) Act as temporary judge when otherwise qualified so

to act and when appointed for that purpose, or by written

consent of an appearing party. While acting as temporary

judge the commissioner shall receive no compensation

therefor other than compensation as commissioner.

(f) Hear and report findings and conclusions to the

court for approval, rejection, or change, all preliminary

matters including motions or petitions for the custody

and support of children, the allowance of temporary

spousal support, costs and attorneys’ fees, and issues of

fact in contempt proceedings in proceedings for support,

dissolution of marriage, nullity of marriage, or legal sep-

aration.

(g) Hear actions to establish paternity and to establish

or enforce child and spousal support pursuant to subdivi-

sion (a) of Section 4251 of the Family Code.

(h) Hear, report on, and determine all uncontested

actions and proceedings subject to the requirements of

subdivision (e).

(i) Charge and collect the same fees for the performance

of official acts as are allowed by law to notaries public in

this state for like services. This subdivision does not

App. 40

apply to any services of the commissioner, the compensa-

tion for which is expressly fixed by law. The fees so

collected shall be paid to the treasurer of the county, for

deposit in the general fund of the county.

(j) Provide an official seal, upon which must be

engraved the words “Court Commissioner” and the name

of the county, or city and county, in which the commis-

sioner resides.

(k) Authenticate with the official seal the commis-

sioner’s official acts.

California Government Code section 72190:

Within the jurisdiction of the court and under the direc-

tion of the judges, commissioners of municipal courts

shall exercise all the powers and perform all of the duties

authorized by law to be performed by commissioners of

superior courts and such additional powers and duties as

may be prescribed by law. At the direction of the judges,

commissioners.may have the same jurisdiction and exer-

cise the same powers and duties as the judges of the court

with respect to any infraction or small claims action. The

commissioners of municipal courts shall possess the same

qualifications the law requires of a judge and shall hold

office during the pleasure of the court appointing them

and shall not engage in the private practice of law. They

shall be ex officio deputy clerks.

Notwithstanding any other provision of law, a commis-

sioner of a municipal court or a justice court of any

App. 41

judicial district in this state who has been duly appointed

and has thereafter been retired for service, or a commis-

sioner of a superior court in this state who has been duly

appointed and has thereafter been retired from service,

may be assigned by the presiding judge or sole judge of a

municipal court to serve as a court commissioner of the

court for any periods of time as he or she is needed for

the prompt and efficient discharge of the business of that

court. While serving, he or she shall be paid the full

compensation of a court commissioner, payable as fol-

lows: he or she shall continue to receive his or her retire-

ment allowance, and in addition the county shall pay him

or her the amount equal to the difference between the

retirement allowance and full compensation. That

employment shall not operate to reinstate him or her as a

member of the county retirement system or to terminate

or suspend his or her retirement rights or allowance, and

no deductions shall be made from his or her compensa-

tion as contributions to the retirement system.

California Government Code section 72190.1:

A commissioner of a municipal court may conduct

arraignment proceedings in the court if directed to per-

form those duties by the presiding or sole judge of the

court, including the issuance and signing of bench war-

rants.

App. 42

California Government Code section 72190.2:

If directed to perform such duties by the presiding judge

or sole judge of the court, a commissioner of the munici-

pal court may issue and sign a bench warrant for the

arrest of a defendant who fails to appear in court when

required to appear by law or who fails to perform any act

required by court order.

California Government Code section 72192:

Whenever the appointment of a commissioner or jury

commissioner is authorized by law, he shall be appointed

by and hold office at the pleasure of a majority of the

judges or the judge senior in service when there is an

equal division of the judges. He shall be a member of any

retirement system which includes municipal court

attaches.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.