McMillan v. Svetanoff

• Decision Date: 10 June 1986
• Docket Number: No. 85-1544,85-1544
• Citation: 793 F.2d 149
• Parties: 40 Fair Empl.Prac.Cas. 1737, 40 Empl. Prac. Dec. P 36,208, 54 USLW 2650 Harriett L. McMILLAN, Plaintiff-Appellee, v. Gerald SVETANOFF, Defendant-Appellant. Seventh Circuit
• Court: U.S. Court of Appeals — Seventh Circuit

Page 149

793 F.2d 149

40 Fair Empl.Prac.Cas. 1737,

40 Empl. Prac. Dec. P 36,208, 54 USLW 2650

Harriett L. McMILLAN, Plaintiff-Appellee, v. Gerald SVETANOFF, Defendant-Appellant.

No. 85-1544.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 6, 1985.

Decided June 10, 1986.

Arthur Thaddeus Perry, Office of Atty. Gen., Indianapolis, Ind., for defendant-appellant.

John O. Moss, Moss & Walton, Indianapolis, Ind., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, WOOD and CUDAHY, Circuit Judges.

CUMMINGS, Chief Judge.

The issue in this case is whether a judge's act in firing a court reporter is protected by judicial immunity. The plaintiff, Harriett McMillan, was employed as a court reporter for the Lake County Superior Court from February, 1973, to July 1, 1981. When the defendant, Gerald Svetanoff, was elected and took office as judge he dismissed the entire staff of his courtroom, including McMillan. One employee was rehired.

Indiana Code Sec. 33-5-29.5-8 provides that court personnel serve at the pleasure of the senior judge of each division. In practice each judge employs the staff for his or her own courtroom subject to approval of the senior judge. Court reporters serve a particular judge, but are occasionally rotated through other chambers and also do work for private attorneys.

McMillan brought suit under 42 U.S.C. Secs. 1981 and 1983, alleging violations of her civil rights. Specifically, she claimed she was discharged because of her race (black) and her political affiliation (Democrat). Judge Svetanoff filed a motion for summary judgment as to the damages claims, asserting absolute judicial immunity. The district court denied the motion without a statement of reasons. We affirm.

I

The sole question presented for review is whether the defendant should be shielded from personal liability for his termination of the plaintiff. It is well established that judges are immune from liability for their judicial acts, even when they act maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). The purpose of judicial immunity is to protect the public's interest in an independent judiciary. The doctrine of judicial immunity was initially developed in the context of adversarial proceedings where judges decide controversies between parties. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646 (1871). It has since been extended to any "judicial" act performed by a judge and even to other officials acting in a manner closely aligned with the judicial process. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Mother Goose Nursery Schools, Inc. v. Sendak, 770 F.2d 668 (7th Cir.1985), certiorari denied, --- U.S. ----, 106 S.Ct. 884, 88 L.Ed.2d 919 (1986).

The rationale for a doctrine that excludes judges from liability for even intentional and malicious conduct while on the bench is that judges should be free to make controversial decisions and act upon their convictions without fear of personal liability. Stump, 435 U.S. at 364, 98 S.Ct. at 1108. It is the concern for principled and fearless decisionmaking that forms the basis for judicial immunity. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). But immunity is only granted when essential to protect the integrity of the judicial process. Briscoe v. LaHue, 460 U.S. 325, 334-335, 103 S.Ct. 1108, 1115, 1116, 75 L.Ed.2d 96 (1983).

Courts are hesitant and cautious in applying the judicial immunity doctrine to areas outside the traditional adversarial process, such as to quasi-judicial acts. See Malley v. Briggs, --- U.S. ----, 106 S.Ct. 1092, 1096-1098 (1986). In order for quasi-judicial officials to be granted absolute judicial immunity, their acts must reflect the essence of judicial decision-making and involve discretion of a judicial nature. See id., 106 S.Ct. at 1097; Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Clark v. Washington, 366 F.2d 678 (9th Cir.1966). Accordingly, only in the most extraordinary cases are executives shielded from damages liability. See Cleavinger v. Saxner, --- U.S. ----, 106 S.Ct. 496, 501, 88 L.Ed.2d 507 (1985) (citing favorably Saxner v. Benson, 727 F.2d at 669, 674 n. 2 (Cudahy, J., concurring)). We must be equally hesitant in applying the doctrine to judges acting outside the traditional dispute resolution function.

In Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, the Supreme Court set out a test for determining when judicial immunity applies. In that case the more traditional role of the judge was involved. Upon application of a mother, the judge signed an order permitting the sterilization of her 15-year old daughter without her knowledge. Years later when the girl discovered that she had been sterilized she sued the judge for his failure to follow rudimentary due process considerations. The Supreme Court held that judicial immunity would apply unless the judge was acting totally without jurisdiction or the act was non-judicial. Id. at 360, 98 S.Ct. at 1106. The Court defined "judicial act" as follows: (1) an act normally performed by a judge and (2) where the parties deal with the judge in his or her judicial capacity. Id. at 362, 98 S.Ct. at 1107. The "jurisdiction" language of the Stump test supports the rationale for restricting extensions of judicial immunity, for the concept of jurisdiction is peculiarly related to the power of the court to render decisions against the parties before it. But in this case a jurisdiction analysis is inappropriate because the discharge decision does not implicate the power of the court--only the authority of the judge to make such an employment decision. Since the Stump test is in the disjunctive, we need to consider the non-judicial act part of the test.

II

A.

Most court decisions interpreting judicial acts in the context of judges' hiring and firing decisions have not extended judicial immunity protection. Those cases have uniformly held that such decisions are not "judicial" in nature and thus do not further the doctrine's objective of protecting judicial decisionmaking freedom. The defendant argues that because the selection of court reporters is made exclusively by judges, it meets the first prong of the Stump test and because court reporters assist judges in carrying out their official duties the second prong is also met. We find these arguments unpersuasive after a review of other judicial immunity decisions.

The defendant cannot find real support for his contention that his act is protected in Blackwell v. Cook, 570 F.Supp. 474 (N.D.Ind.1983). In Blackwell, Judge Sharp held that the defendant judge's act of firing a probation officer was a judicial act, thus warranting immunity. The same Indiana statute was involved as here. The Blackwell court focused on the close working relationship between the probation officer and the defendant judge, finding that the duties of the probation officer were "inextricably bound up with the very functioning of the court itself." Id. at 478. Here there was no such relationship. Moreover, the act of firing by Judge Svetanoff in no way implicated the judge's decisionmaking ability. ¹

A subsequent Northern District of Indiana case criticizes the part of the Blackwell decision on which defendant relies. In Laskowski v. Mears, 600 F.Supp. 1568 (N.D.Ind.1985), probation officers claimed civil rights violations against a judge for discharge based on age and political affiliation. Judge Moody denied the defendant's summary judgment motion based on absolute judicial immunity. In so doing, Judge Moody explicitly refused to follow the Blackwell result. Id. at 1574. After noting that the protections of judicial immunity are not for the benefit of a malicious or discriminating judge but rather for the benefit of the public and that the doctrine should be limited to its central purpose, the court held that a determination of whether their relationship implicates the judge's independence was needed, so that summary judgment was improper. Id.; see Forrester v. White, 792 F.2d 647, No. 84-1823 (7th Cir. June 5, 1986); Pruitt v. Kimbrough, 536 F.Supp. 764 (N.D.Ind.1982), affirmed memoranda, 705 F.2d 462 (7th Cir.1983); see also Ex parte Virginia, 100 U.S. 339, 10 Otto. 339, 25 L.Ed. 676 (1879) (application of judicial immunity depends on the character of the act).

This circuit has recently considered whether a judge should be immune from suit for firing a probation officer. Forrester v. White, 792 F.2d 647, No. 84-1823 (7th Cir. June 5, 1986). We granted immunity to the judge by reasoning that because the probation officer advised the judge on substantive decisionmaking, the judge's own discretion was sufficiently at risk to fall within the doctrine's purpose. Id. at 657-658. Forrester goes beyond Blackwell by emphasizing the effect of firing on the judge's ability to render decisions. Because court reporters are not similarly situated such analysis is not dispositive of this case.

Other district court decisions support no immunity when a judge discharges a court reporter. In Shore v. Howard, 414 F.Supp. 379 (N.D.Tex.1976), the court reasoned that when the "initiative and independence of the judiciary is not effectively impaired," the doctrine of judicial immunity does not apply. ² Accord Clark v. Campbell, 514 F.Supp. 1300 (W.D.Ark.1981) (judge's duties in hiring and firing county employees were clearly administrative; the judge was not engaged in a judicial function); Cronovich v. Dunn, 573 F.Supp. 1340 (E.D.Mich.1983).

Similarly, in Lewis v. Blackburn, 555 F.Supp. 713, 723 (W.D.N.C.1983), reversed on other grounds, 759 F.2d 1171 (4th Cir.1985), certiorari denied, --- U.S. ----, 106 S.Ct. 228, 88 L.Ed.2d 228, a magistrate sued a court clerk and judge for failing to reappoint her in violation of the First Amendment. The court held that because the...