Carey v. Dostert

Decision Date30 July 1991
Docket NumberNo. 19714,19714
Citation185 W.Va. 247,406 S.E.2d 678
CourtWest Virginia Supreme Court
PartiesWilliam B. CAREY, Respondent Below, v. Pierre E. DOSTERT, Defendant Below.

Syllabus by the Court

1. Judges are absolutely immune from civil liability for damages for actions taken in the exercise of their judicial duties.

2. A judge acting in his judicial capacity who provides the public with information contained in the public record, whether through the press or otherwise, or distributes copies of pleadings or other official court documents which are a part of the public record does not thereby give up the protection of judicial immunity.

William B. Carey, pro se.

David P. Cleek, Cleek, Pullin & Bibb, Charleston, for defendant.

O'HANLON, Acting Justice: 1

This matter is before the Court to answer the certified questions posed by the Circuit Court of Morgan County. The questions certified by the lower court 2 are as follows:

1. Is a circuit court judge entitled to judicial immunity for issuing an order to show cause dated December 7, 1981, against a practicing attorney under W.Va.Code § 30-2-7 (1931), knowing that the statute was obsolete and superseded by W.Va.Code § 51-1-4a (1945), Bylaws of the West Virginia State Bar, and the Judicial Reorganization Amendment to the West Virginia Constitution, Article VIII?

2. Is a circuit court judge entitled to judicial immunity for issuing an order to show cause dated December 7, 1981, against a practicing attorney under W.Va.Code § 30-2-7, when the judge should have known that the statute was obsolete and superseded by W.Va.Code § 51-1-4a, the Bylaws of the West Virginia State Bar, and the Judicial Reorganization Amendment to the West Virginia Constitution, Article VIII?

3. Is a circuit court judge entitled to judicial immunity for issuing an order to show cause dated December 7, 1981, against a practicing attorney under W.Va.Code § 30-2-7, when the statute was subsequently found to be obsolete and superseded by W.Va.Code § 51-1-4a, Bylaws of the West Virginia State Bar, and the Judicial Reorganization Amendment to the West Virginia Constitution, Article VIII?

4. Does a circuit court judge waive protection of the judicial immunity defense by providing a newspaper reporter with a copy of the aforesaid order to show cause, prior to its filing with the clerk of the circuit court, the contents of which were the basis of a newspaper article which was published on the date the order was filed?

5. Is alleged injury to an attorney's reputation a property or liberty interest protected by fourteenth amendment to the United States Constitution?

The lower court implicitly answered all the above questions in the affirmative when it denied the petitioner's motions for summary judgment by its order entered on December 12, 1989. Upon review of the arguments of the parties and all the matters of record submitted before the Court, we disagree.

On or about December 1, 1981, the petitioner, Judge Pierre Dostert, then Judge of the Twenty-third Judicial Circuit, received a written communication from Syvilla Hovermale, a client of respondent, William B. Carey, a licensed practicing attorney in Morgan County, complaining about the proposed settlement of a wrongful death case prosecuted by the respondent on behalf of Mrs. Hovermale.

Mrs. Hovermale set forth the nature of her contingency contract with Carey and charged that he had refused to consummate the settlement. On December 7, 1981, petitioner issued an order to show cause against the respondent directing him to appear before the court. The petitioner's order referred to his concern with the respondent's fifty percent contingency fee contract with Mrs. Hovermale. 3 On December 9, 1981, Frank Brill, a newspaper reporter, was visiting the office of Judge Dostert and was supplied with a copy of the order by either the petitioner, his secretary, or his clerk. 4 An article written solely from the contents of the order to show cause was published December 10, 1981, in The Evening Journal, a newspaper of general circulation published in Martinsburg. The order to show cause was filed with the clerk of the court on December 10, 1981. On the same date, the petitioner issued a second order in which he recused himself from hearing the matter.

The respondent obtained a writ of prohibition against the petitioner in this Court, wherein we held that W.Va.Code § 30-2-7 (1931), 5 the statute under which the judge had acted, had been superseded by W.Va.Code § 51-1-4a, the Bylaws of the West Virginia State Bar, and the Judicial Reorganization Amendment to the West Virginia Constitution, Article VIII, and was consequently invalid. Syl. Pt. 2, Carey v. Dostert, 170 W.Va. 334, 294 S.E.2d 137 (1982) (hereinafter referred to as Carey I ).

On December 1, 1982, the respondent filed a civil action against the petitioner in the Circuit Court of Morgan County, seeking damages for libel, slander, malicious prosecution, abuse of process, negligence, intentional infliction of emotional distress, and violation of civil rights under 42 U.S.C.A. § 1983 (West 1981). The essence of the respondent's action was that his professional reputation had been damaged as a result of the petitioner's order to show cause and the resulting news article.

This Court, on February 1, 1983, temporarily assigned the Honorable Dan C. Robinson, Judge of the Sixth Judicial Circuit, to the Twenty-third Judicial Circuit to preside over the case below. On December 12, 1989, the trial court denied in part the petitioner's motion to dismiss and/or motion for summary judgment grounded on judicial immunity, denied petitioner's motion for a partial summary judgment as to the civil rights claim, dismissed count two of the complaint [slander] and dismissed the respondent's claims for economic damages. By order of February 12, 1990, the trial court directed that certain questions of law be certified to this Court.

Certified Questions Numbered 1, 2 and 3

The first three certified questions call upon us to determine whether the petitioner enjoyed judicial immunity if he 1) knew, 2) should have known, or 3) subsequently learned that the statute was obsolete. The petitioner argues that immunity exists and is applicable in all these situations, since all acts taken by the petitioner were judicial acts made within his actual or apparent jurisdiction. The respondent, however, argues that the petitioner judge was not performing a judicial act to which immunity would attach.

It is critical to the independence of the judiciary that judicial officers be free to exercise their authority without fear of personal liability for their actions. Historically, courts have recognized this as the doctrine of judicial immunity, and it is "as old as the law" as recognized by the United States Supreme Court in Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536, 19 L.Ed. 285 (1868). 6 Because it is a judge's duty to decide all cases within his jurisdiction, and because his decisions may arouse intense feelings, particularly in hotly-contested cases, fearless and independent judicial decision-making should not be intimidated by potential litigation from dissatisfied litigants. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967).

The doctrine of judicial immunity as enunciated by the United States Supreme Court is sweeping in its scope. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871) the United States Supreme Court recognized that judicial immunity applied to preclude liability however erroneous or injurious the judge's action may have been, or indeed whatever the judge's motive in taking such action may have been, so long as it was a judicial act. Id. at 347. Moreover, this Court in Pritchard v. Crouser, 175 W.Va. 310, 332 S.E.2d 611 (1985) concurred with the three major policy grounds identified by the United States Supreme Court for shielding judges from liability, which included: "(1) the preservation of judicial independence; (2) the need for finality in lawsuits; and, (3) the existence of another remedy against judicial excess in the form of appellate review." 175 W.Va. at 314, 332 S.E.2d at 615.

In Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) the United States Supreme Court reiterated this doctrine despite circumstances indicating a rather aggravated lack of due process. In that case, the circuit judge approved a petition filed by the mother of a " 'somewhat retarded' " girl to have the girl sterilized. Id. at 351, 98 S.Ct. at 1102. The approval of the petition came the same day it was filed after an ex parte proceeding without a hearing and without notice to either the girl or her guardian ad litem. Id. at 351-54, 360, 98 S.Ct. at 1101-04, 1106. The Court in Stump went so far as to hold that a judge would not be deprived of immunity even if the action were malicious or beyond his authority. Id. at 356, 98 S.Ct. at 1104. The Court made it clear that the judge would only be subjected to liability "when he has acted in the 'clear absence of all jurisdiction.' " Id. at 356-57, 98 S.Ct. at 1105 (quoting Bradley, 80 U.S. (13 Wall.) at 351).

Courts have reasoned that it is necessary to imbue the doctrine of judicial immunity with such broad scope in order to preserve the integrity of the judicial system. As the Court stated in Stump, disagreement with the action taken by the judge does not justify a deprivation of immunity. 435 U.S. [185 W.Va. 251] at 363, 98 S.Ct. at 1108. Even if this doctrine may in some circumstances create unfairness to litigants, it is necessary in order to ensure that judges render decisions without fear of personal consequences. Id.

This Court has also recognized broad judicial immunity against civil liability. See Crouser, 175 W.Va. at 310, 332 S.E.2d 611. In Crouser, this Court was asked to determine the scope of judicial immunity in light...

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