Richardson v. Koshiba

Decision Date01 December 1982
Docket NumberNo. 81-4041,81-4041
Citation693 F.2d 911
PartiesRobert K. RICHARDSON, Plaintiff-Appellant, v. James E.T. KOSHIBA, Joan S. Brown, Herbert C. Cornuelle, William L. Fleming, Henry T. Miyamoto, Lawrence S. Okinaga, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Walter R. Schoettle, Honolulu, Hawaii, for plaintiff-appellant.

Paul Alston, Paul, Johnson & Alston, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before SCHROEDER, NELSON, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Robert K. Richardson, a former Hawaii state district court judge, appeals an adverse judgment in his suit against the members of Hawaii's Judicial Selection Commission (Commission). 1 Richardson challenges their denial of his petition for reappointment, alleging that the Commission's treatment of his petition violated his Fourteenth Amendment rights to procedural due process. He seeks monetary and equitable relief under 42 U.S.C. Secs. 1983, 1988. 2 He also alleges violations of Hawaii's constitution and laws.

Because the need to decide the federal due process issues could be obviated by resolution of the state law issues presented in this case, and because we think it more appropriate to have Hawaii's courts decide these sensitive questions of state law controlling judicial appointments, we abstain.

Facts

Richardson was appointed to a six-year term as state district court judge in 1974. During his term, the people of Hawaii altered their method of judicial selection by amending their constitution to establish a Judicial Selection Commission. Haw. Const. art. VI, Sec. 4 (1978).

The amended constitution authorizes the Commission to nominate individuals to fill judicial vacancies and to determine whether to retain sitting judges when their terms expire. Id. Sec. 3. The constitution, however, provides no procedural or substantive guidelines for judicial selection and retention. Instead, it empowers the Commission to promulgate rules which shall have "the force and effect of law." Id. Sec. 4. The Commission's rules authorize it to screen applications, to "conduct investigations into the background and qualifications of applicants," and to interview applicants. 3 With specific regard to petitions for reappointment, the rules obligate the Commission to (1) publicize the application for reappointment "in such a manner as it deems appropriate to the end that all persons who might have an interest in the ... [decision regarding reappointment] be given an opportunity to present their views," (2) investigate the petitioner's qualifications, and (3) interview the petitioner. The Commission "may," but need not, hold hearings regarding the merits of reappointment. 4

Prior to the expiration of his term, Richardson filed a timely petition for reappointment. The Commission issued a press release acknowledging Richardson's petition; however, it apparently did not purchase a classified advertisement in the legal notice section of local newspapers. The record does not indicate whether the contents of the press release were ever published by the news media. The Commission also conducted an extensive review of Richardson's qualifications, during which it interviewed numerous individuals, including Richardson. The Commission, however, did not inform Richardson of any of the complaints that may have been lodged against him, nor did it afford him an opportunity to confront and cross-examine adverse witnesses. 5

The Commission decided not to reappoint Richardson. He then filed this action to challenge that decision and the procedure by which it was made. He seeks monetary and injunctive relief.

Procedural Posture

Richardson's complaint contained six claims. The district court dismissed four of these, and granted summary judgment in favor of the Commission on the others. Richardson appeals the disposition of only four of his claims.

At issue in this appeal are: (1) Count II, which alleges that the Commission failed to publicize Richardson's petition for reappointment pursuant to the Commission's rules, and thereby deprived him of the due process protections afforded by the Hawaii and United States Constitutions; (2) Count III, which alleges that the Commission denied Richardson an opportunity to rebut claims made against him and to confront and cross-examine adverse witnesses, an alleged deprivation of procedural due process; (3) Count IV, which claims that the Commission leaked information to the press in violation of Haw. Const. art. VI, Sec. 4 6 and Commission Rules 5(C) and 7 and thereby damaged his name and reputation; and (4) Count V, which alleges that two Commission members failed to report possible conflicts of interest to the Commission's chairperson in violation of Commission Rule 5-(B). 7 The district court dismissed Counts III and IV and granted summary judgment on Counts II and V.

Immediately prior to the court's disposition of this case, Richardson presented a "Motion for Abstention," which was denied. Richardson does not challenge the denial of that motion on appeal.

After judgment was entered against Richardson another person was appointed to fill the vacancy created when his term expired. Subsequently, the Commission filed a motion to dismiss this appeal, arguing that the filling of the vacancy rendered Richardson's request for injunctive relief moot and that the claim for monetary relief was barred because the defendants enjoy absolute immunity. The motions panel referred this motion to the merits panel.

I Motion to Dismiss

We first consider the Commission's motion to dismiss. If either monetary or injunctive relief is available to Richardson, we must deny the motion.

The defendants argue that they are absolutely immune from liability for damages because they are agents of the court and their challenged actions were performed in furtherance of their quasi-judicial functions. In rebuttal Richardson argues that (1) even if defendants are agents of the court, their functions were executive in nature, (2) for this reason they enjoy at best only a qualified immunity, and (3) their entitlement to qualified immunity is a question of fact to be determined at trial.

It is well settled that judges and those performing judge-like functions are absolutely immune from 42 U.S.C. Sec. 1983 damage liability 8 for acts performed in their judicial capacities. See Stump v. Sparkman, 435 U.S. 349, 355-57, 98 S.Ct 1099, 1104-05, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1966) (judges); Sellars v. Procunier, 641 F.2d 1295, 1301-04 (9th Cir.) (parole board officials), cert. denied, --- U.S. ----, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981). But cf. Rankin v. Howard, 633 F.2d 844, 847-49 (9th Cir.1980) (judge acting in clear absence of jurisdiction cannot claim absolute immunity), cert. denied, 451 U.S. 939, 101 S.Ct. 2020, 68 L.Ed.2d 326 (1981); Lopez v. Vanderwater, 620 F.2d 1229, 1235-37 (7th Cir.) (no immunity for non-judicial acts), cert. dismissed, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980). Those entitled to absolute immunity have it "because of the special nature of their responsibilities" rather than "because of their particular location within the Government." Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978). Thus, when a court official acts in a capacity in which he is not called upon to exercise judicial or quasi-judicial discretion, he is not entitled to absolute judicial immunity. See Gregory v. Thompson, 500 F.2d 59, 63 (9th Cir.1974). Consequently, the fact that Hawaii's Constitution attaches the Commission to Hawaii's judiciary "for purposes of administration" 9 does not necessarily confer absolute immunity from Sec. 1983 liability. Instead, we must examine the "functional comparability" of the role of the Commission's members to the role of those officials who have absolute immunity. See Sellars, 641 F.2d at 1298.

One claiming immunity has the burden of demonstrating entitlement to it. Butz, 438 U.S. at 506, 98 S.Ct. at 2910. The Commission contends that its functions are "judicial" in nature because its responsibilities of recommending candidates for judicial office to the appointing officials and of reviewing reappointment petitions requires it to "weigh the merits of [the] candidates," "consider all the evidence," "conduct extensive investigations," and "act very much like judges in attempting objectively to evaluate ... the merits of each candidate or petition." Although the Commission describes its responsibilities in "judicial" terms, these functions bear little resemblance to the characteristic of the judicial process that gave rise to the recognition of absolute immunity for judicial officers: the adjudication of controversies between adversaries. See Butz, 438 U.S. at 511-17, 98 S.Ct. at 2913-17; Sellars, 641 F.2d at 1299. Rather, these responsibilities indicate that the Commission's functions are executive in nature. 10 Accord In re Advisory Opinion to the Governor, 276 So.2d 25, 29 (Fla.1973) (function of Florida's judicial nominating commissions was executive in nature).

The Commission also argues that as an "arm of the court" its members are entitled to absolute immunity. In support of this argument, it cites cases that recognize absolute immunity for members of bar association grievance committees. See Slavin v. Curry, 574 F.2d 1256, 1266 (5th Cir.1978); Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir.1966). Indeed, these committees are "arms of the courts" and their members enjoy absolute immunity. Nonetheless, the immunity attaches because of the nature of the functions performed by these committees, i.e., prosecuting and adjudicating claims of professional misconduct, which is an "integral part of the judicial process." See Clark, 366 F.2d at 681. The mere...

To continue reading

Request your trial
50 cases
  • Pulliam v. Allen, 82-1432
    • United States
    • U.S. Supreme Court
    • May 14, 1984
    ...(CA6 1981); Harris v. Harvey, 605 F.2d 330 (CA7 1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980); Richardson v. Koshiba, 693 F.2d 911 (CA9 1982). The Eighth Circuit at one time seems to have taken contradictory positions on whether judges are immune from declaratory ......
  • Greene v. Zank
    • United States
    • California Court of Appeals Court of Appeals
    • July 23, 1984
    ...judicial capacities. (Stump v. Sparkman, supra, 435 U.S. 349, 355-357, 98 S.Ct. 1099, 1104-1105, 55 L.Ed.2d 331; Richardson v. Koshiba (9th Cir.1982) 693 F.2d 911, 913.) In analyzing the immunity issue in the instant case, we must first characterize the governmental activity involved, becau......
  • Cinevision Corp. v. City of Burbank
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 18, 1984
    ...nature of their responsibilities' rather than 'because of their particular location within the Government.' " Richardson v. Koshiba, 693 F.2d 911, 914 (9th Cir.1982) (holding that Hawaii's Judicial Selection Commission was not entitled to absolute judicial immunity) (quoting Butz v. Economo......
  • Forrester v. White
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 5, 1986
    ...776 F.2d 942, 945 (11th Cir.1985) (en banc) (per curiam); Holloway v. Walker, 765 F.2d 517, 522-25 (5th Cir.1985); Richardson v. Koshiba, 693 F.2d 911, 913-15 (9th Cir.1982); Note, What Constitutes a Judicial Act for Purposes of Judicial Immunity?, 53 Fordham L.Rev. 1503 (1985). As the Nint......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT