Antelman v. Lewis, Civ. A. No. 79-737-K.

• Decision Date: 13 November 1979
• Docket Number: Civ. A. No. 79-737-K.
• Citation: 480 F. Supp. 180
• Parties: Marvin S. ANTELMAN, Plaintiff, v. Elma LEWIS, Alan Hoffman and Honorable Samuel Adams, Defendants.
• Court: U.S. District Court — District of Massachusetts

480 F. Supp. 180

Marvin S. ANTELMAN, Plaintiff, v. Elma LEWIS, Alan Hoffman and Honorable Samuel Adams, Defendants.

Civ. A. No. 79-737-K.

United States District Court, D. Massachusetts.

November 13, 1979.

COPYRIGHT MATERIAL OMITTED

Marvin S. Antelman, pro se.

Paul F. Ware, Jr., Goodwin, Procter & Hoar, Boston, Mass., for Alan Hoffman and Elma Lewis.

Terry Jean Seligmann, Asst. Atty. Gen., Boston, Mass., for Samuel Adams.

Opinion

KEETON, District Judge.

I. Procedural Background

On April 11, 1979, plaintiff Antelman filed in this court a complaint against defendants Hoffman, Lewis, and Adams, asserting violation of "rights under the Constitution of the United States and its First, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments, 28 U.S.C. Sections 1331, 1343, and 1443; 42 U.S.C. Sections 1983, 1985, 1986, and 1988, the Constitution and the laws of the Commonwealth of Massachusetts, and the Common Law."

Attached to the complaint is a copy of a petition for removal filed by Antelman as defendant in a previous proceeding, Elma Lewis v. Marvin S. Antelman, Boston Municipal Court # T-27755, Suffolk Superior Court # 666444, docketed in the U.S. District Court for the District of Massachusetts as CA-78-3072-MA. The petition for removal and attachments indicate that Lewis, as plaintiff in this earlier proceeding, sought a recovery in tort for defamation; obtained an attachment that, on April 29, 1975, was reduced to $25,000; received a verdict on November 16, 1978, in the amount of $62,000 plus interest; and on November 17, 1978, served by mail a motion to increase the attachment to $100,000.

The complaint in the present action alleges further that the petition for removal was filed on November 24, 1978, and that thereafter, on November 27, 1978, defendants were furnished a copy of the petition by plaintiff's counsel at a hearing at which Lewis and Hoffman (the latter acting as attorney for the former) appeared before defendant Adams (a Justice of the Superior Court of Massachusetts) and obtained an order for an attachment in the amount of $75,000.

II. Defendant Adams' Motion to Dismiss

Defendant Adams has moved to dismiss on the ground that this action is one challenging his judicial act and that he is protected by an absolute immunity in accordance with Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). On June 9, 1979, this motion was allowed by this court, no opposition having been filed. Numerous other documents having been filed in the meantime, this court, by a procedural order of July 31, 1979, set aside the order of dismissal of June 9, allowed the plaintiff time to file a memorandum of law in opposition to the motion to dismiss, and allowed the defendant Adams time to respond.

The court now addresses defendant Adams' motion to dismiss on the merits.

It is undisputed that, had the petition for removal to the United States District Court not been filed, defendant Adams, acting as a Justice of the Superior Court of the Commonwealth of Massachusetts, would have been protected against the present claim by an absolute immunity under precedents including Stump v. Sparkman, supra, and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). Plaintiff argues, however, that upon the filing of the petition for removal on November 24, 1978, or at least upon the furnishing of copies to the defendants, the state court lost all jurisdiction until the United States District Court entered an order remanding the case on November 28, 1978.¹ During this period, argues plaintiff, the United States District Court had exclusive jurisdiction and, on November 27, 1978, defendant Adams acted "in the clear absence of all jurisdiction."

In Stump v. Sparkman, supra, the Court emphasizes that "the necessary inquiry in determining whether a defendant judge is immune from suit is whether at the time he took the challenged action he had jurisdiction over the subject matter before him." 435 U.S. at 356, 98 S.Ct. at 1104-05. Citing Bradley, supra, the Court adds that "the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge." 435 U.S. at 356, 98 S.Ct. at 1105.

Relying upon Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975); South Carolina v. Moore, 447 F.2d 1067 (4th Cir. 1971); Lowe v. Jacobs, 243 F.2d 432 (5th Cir.), cert. denied, 355 U.S. 842, 78 S.Ct. 65, 2 L.Ed.2d 52 (1957), and Adair Pipeline Co. v. Pipeliners Local Union, 203 F.Supp. 434 (S.D.Tex. 1962), aff'd, 325 F.2d 206 (5th Cir. 1963), plaintiff argues that even a broad construction cannot salvage immunity for defendant Adams because he did not have, in the language of Stump, supra, "jurisdiction over the subject matter before him."

With respect to the meaning of "jurisdiction over the subject matter," the following passage from the opinion in Bradley v. Fisher is instructive:

A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed, some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.

80 U.S. (13 Wall.) at 351-352, 20 L.Ed. 646. The distinction that defines the scope of judicial immunity is usually explained in terms of the language of this passage, as one between "excess of jurisdiction and the clear absence of all jurisdiction over the subject matter." 2 F. Harper & F. James, Torts 1643, § 29.10 n. 26 (1956). Distinguished commentators have explained the distinction also as one recognizing

that an officer generally has the duty and the power to determine whether he has jurisdiction—or, to emphasize it, that he has jurisdiction to determine even mistakenly that he has jurisdiction—unless the facts and the law are so clear as not to present an issue challenging "judicable inquiry."

Id. at 1643, and n. 27.² When acting within the scope of official capacity, defined in this broad way, a judge is protected by absolute immunity. Id. at 1644. See 3 K. Davis, Administrative Law Treatise 531-539, § 26.05 (1958).

As a Justice of the Superior Court of the Commonwealth of Massachusetts, defendant Adams was a judge of a court of general jurisdiction. That court's subject-matter jurisdiction plainly extended to tort actions for defamation and to attachments related to such actions. Whatever the meaning of "jurisdiction" may be as used in judicial opinions concerning the effectiveness of orders entered by a state court after a petition for removal has been filed and before remand, that meaning does not determine the clearly distinguishable question whether the state court has such "jurisdiction over the subject-matter" as will support absolute immunity of the judge from an action for damages based on the state judge's orders. In relation to the immunity issue, Stump and Bradley support the conclusions, first, that defendant Adams had "jurisdiction over the subject-matter" of defamation actions and related attachments and, second, that his claim of immunity would remain valid even if his order regarding attachment were ineffective. This is not to say that a judge of a state court from which a case has been removed to federal district court will always necessarily have absolute immunity to civil liability in damages for any action he may purport to take in the case after it has been removed to federal court. It could be argued, for example, that after the timely and procedurally proper removal of a case over which a federal district court has removal jurisdiction and the denial of a motion for remand, there is a "clear absence of all jurisdiction" in the state court, since thereafter it would be clear that the case must proceed in federal court. However, when a case is removed improvidently and without jurisdiction, the effect of the removal and the...