Hill v. Bartlett

• Decision Date: 12 July 1972
• Docket Number: No. 47346,No. 3,47346,3
• Citation: 126 Ga.App. 833,192 S.E.2d 427
• Parties: C. W. HILL v. F. E. BARTLETT, Jr
• Court: Georgia Court of Appeals

Page 427

192 S.E.2d 427

126 Ga.App. 833

C. W. HILL v. F. E. BARTLETT, Jr.

No. 47346.

Court of Appeals of Georgia, Division No. 3.

July 12, 1972.

Rehearing Denied July 28, 1972.

Syllabus by the Court

A police court recorder with jurisdiction over the cause and the person receives the protection of judicial immunity on his rulings as such magistrate. Under such circumstances he would not be civilly liable in an action for false arrest or false imprisonment resultings from imposition erroneously of a contempt of court sentence.

Charles W. Hill, in pro. per.

Landau, Davis & Farkas, James V. Davis, Albany, for appellee.

CLARK, Judge.

Lawyer sues judge! That headline happening confronts us in this appeal where an ardent advocate zealous in protecting the traditional independence of the American attorney clashes with a conscientious police court magistrate imbued with an earnest desire for constitutional compliance in administering justice to indigent persons presented for trial in this tribunal.

As Judge of the Recorder's Court of the City of Albany, Bartlett learned some time prior to July 8, 1970, that a federal judge in Atlanta had sustained a habeas corpus proceeding which discharged all prisoners serving sentences in Fulton County after convictions in the Atlanta Recorder's Court because they had not been informed of their right to counsel which was followed by a similar ruling by the Superior Court of Dougherty County discharging four prisoners who had been sentenced by Bartlett. In view of these decisions and upon advise of the Albany City Attorney together with the cooperation of the Albany Bar Association Bartlett established a system of rotating the members of the local bar ¹ to make them available without fee to represent indigent defendants in the Police Court of Albany.

The instant imbroglio developed from a delayed appearance by Attorney Hill on October 12, 1970, with a disagreement between the parties here as to the details of the incident which resulted in Hill being ruled to be in contempt of court and sentenced to pay $25 or spend eight days in jail. He was incarcerated but through another attorney retained by him posted bond and was released after one hour. The Recorder also informed Hill of his intention to have him appear in Albany Rocorder's Court on October 15, 1970, for appointment to represent indigents. Hill then filed an injunction proceeding in the superior court asserting the recorder lacked the power 'to command the appearance of plaintiff or any other attorney for the purpose of appointing him to represent the indigent.' After an adverse ruling in the lower jurisdiction Hill took an appeal to our Supreme Court. There in Hill v. Bartlett, 277 Ga. 385, 181 S.E.2d 57, the opinion concluded: 'The decisive question in this case is whether the recorder is required to appointed counsel to represent, in the recorder's court of the City of Albany, an indigent defendant who is charged with violating the laws and ordinances of the City of Albany. In our opinion the answer is in the negative.' (This decision was on March 4, 1971, prior to the recent ruling on June 12, 1972, of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530.

It should be noted this previous appeal did not deal with the contempt sentence. The record in the present appeal does not show the outcome but through appellant's excellent supplemental brief in which he has argued extensively and eloquently his position it appears certiorari had been obtained on the contempt conviction and that after the Supreme Court decision this certiorari had been sustained with the contempt judgment of the Recorder's Court being reversed on October 1, 1971.

Hill next sued Bartlett for $15,000 damages alleging he had been 'illegally arrested and illegally imprisoned.' Bartlett's answer averred 'The acts complained of were acts done by the defendant as a judicial officer, and the defendant is immune from liability.' Both parties filed summary judgment motions with supporting affidavits. The trial judge entered an order in three parts: (1) sustaining objection of defendant to plaintiff's counter-affidavit as not being timely filed; (2) granting defendant's motion for judgment in his favor and against plaintiff; and (3) denying plaintiff's motion.

This appeal is by plaintiff from that order. Held:

1. Was the Recorder here clothed with the protective mantle of 'judicial immunity?'

Although Georgia alone of any American commonwealth was without a Supreme Court for the first 70 years of our State's existence, our forebears were blessed prior to 1845 with a bench 'ornamented by men whose ability has never been equalled in any period of the State's history' (1907 Ga. Bar Assoc. Reports page 91-'History of Supreme Court' by Joseph R. Lamar ².) Beginning in 1830 these legal luminaries chaired by the famous William H. Crawford convened semi-annually and their opinions which are found in George M. Dudley's compilation provide superlative judicial directives. In July 1832 they reported the case of Upshaw v. Oliver et al. which is to be found at page 241 of the Dudley volume. There the civil suit arose out of an arrest and imprisonment in which the defendants had acted in a judicial capacity but plaintiff's counsel contended there was 'an admission by one of the defendants, that he knew the proceedings of the court were illegal' so that at least as to him the action should be sustained. The court stated 'The current of authorities from the earliest dawn of jurisprudence down to the latest reported cases, not only in the courts of Great Britain, but of the United States, shield judicial officers from civil actions and criminal prosecutions (except by way of impeachment) for acts done in their judicial character.' Although pronounced 140 years ago, the reason therein stated still applies: 'The court believes that the welfare and peace of the community depend upon a strict adherence to the principle which has been universally established by all civilized nations on this subject.'

Such immunity was applied to a justice of the peace in Long v. Carter, 39 Ga.App. 508, 147 S.E. 401.

Does judicial immunity extend to a police court judge? An affirmative answer is required under Calhoun v. Little, 106 Ga. 336, at page 339, 32 S.E. 86 at page 88 where it is observed: 'It is universally conceded that judges of courts of superior and general jurisdiction are exempt from liability in damages for judicial acts, even when such acts are in excess of their jurisdiction. This doctrine has become firmly fixed in the jurisprudence of both England and the United States. Upon its strict application depends, to a very great extent, the usefulness of courts, and the fearless and impartial administration of justice. . . .'

The Supreme Court in the Calhoun case went on to hold that this immunity extends to judicial officers of inferior tribunals. The court further stated at page 341, 32 S.E. at page 88 the general rule which obtains in Georgia and other jurisdictions ³:

'We must not be understood, however, as ruling that these officers have immunity from civil liability in all cases. As was said in Bradley v. Fisher (S.Ct., 20 L.Ed. 646), is Wall, 335, 352: 'Where there is clearly no jurisdiction over the subjectmatter, 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.' . . . (A)ll judicial officers stand on the same footing, and must be governed by the same rules. It follows from what has been said, that where the court has jurisdiction of the subject-matter of the offense, and the presiding officer erroneously decides that the court has jurisdiction of the person committing it, or commits an act in excess of his jurisdiction, he will not be liable in a civil action for damages. But, where there is a clear absence of jurisdiction over the subjectmatter, the officer will be liable for exercising it, provided such want of jurisdiction is known to him.'

With the foregoing guidance we consider the case at hand.

First we note that by statute the Albany Recorder's Court was not only granted jurisdiction to try all offenders of city ordinances and 'investigation of any charge involving or amounting to a violation of the penal laws of Georgia' but specifically granted 'the same power as judges of the superior court of this State to punish for contempt of said city police court' limited to miximum fine of $25 and a jail sentence of 10 days. Ga.L.1923, pp 370, 395. Thus the presence here of a general contempt jurisdiction is undeniable in addition to the inherent power which exists in all courts. Cobb v. State, 187 Ga. 448, 200 S.E. 796, 121 A.L.R. 210. This inherent power to punish for contempt exists also in recorder's courts. Brooks v. Sturdivant, 177 Ga. 514, 170 S.E. 369. See also Annotation in 54 A.L.R....