Lopez v. Vanderwater

• Decision Date: 29 April 1980
• Docket Number: No. 79-1904,79-1904
• Citation: 620 F.2d 1229
• Parties: Flor LOPEZ, Plaintiff-Appellant, v. William VANDERWATER and Howard Wheeler Gamble, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1229

620 F.2d 1229

Flor LOPEZ, Plaintiff-Appellant, v. William VANDERWATER and Howard Wheeler Gamble, Defendants-Appellees.

No. 79-1904.

United States Court of Appeals Seventh Circuit.

Argued Feb. 21, 1980.

Decided April 29, 1980.

Edward Garcia, Mundelein, Ill., for plaintiff-appellant.

Robert E. Davy, Sloan & Connelly, P. C., Chicago, Ill., Wayne F. Weiler, Aurora, Ill., for defendants-appellees.

Before SPRECHER, TONE and WOOD, Circuit Judges.

TONE, Circuit Judge.

This appeal concerns the scope of judicial immunity to be afforded under 42 U.S.C. § 1983 to a judge who engaged in highly irregular conduct. On the night of October 16, 1975, defendant Vanderwater, then an Illinois judge, arrested plaintiff Flor Lopez, caused him to be charged with petty theft, convicted him on the basis of a guilty plea that is alleged to have been forged, and sentenced him to jail for 240 days. Vanderwater accomplished all this with minimal aid from a business associate and several police officers; he proceeded without the assistance of a prosecutor, a defense attorney, a court reporter, or a court clerk. The conviction took place near midnight in a police station in Aurora, Illinois. This § 1983 action by Lopez resulted.

The district court granted summary judgment for Vanderwater on the ground of judicial immunity. We reverse that ruling, because Vanderwater committed non-judicial acts under color of state law that proximately resulted in violations of Lopez' constitutional rights. The district court also granted summary judgment in favor of defendant Gamble, Vanderwater's business associate. We reverse that ruling also.

I.

At the time of the events that gave rise to this action Vanderwater was an associate judge of the Illinois Sixteenth Judicial Circuit. Before he became a judge, he, defendant Gamble, and two others owned an apartment building at 128 West New York Street, Aurora, Illinois. Although it is unclear whether Vanderwater retained an ownership interest in the building after he became a judge, he continued to perform his accustomed task of collecting the rent each week on behalf of the partnership; he did this up to and including the time of the events in question here.

Flor Lopez had been one of the tenants in the building, but had fallen behind in his rent. Because of the arrearages Vanderwater asked Lopez to move out, which he did in late August or early September, 1975.

From this point on, some facts are in dispute. As to them, any evidence favorable to Lopez must be accepted as true for purposes of our review of the summary judgment against him.

On the night in question, Vanderwater received a telephone call at his home in Aurora from a tenant reporting that Lopez was back in the building. ¹ Vanderwater asked the tenant to call the police and proceeded to the building armed with a handgun. Finding Lopez asleep in what had formerly been his apartment, Vanderwater awakened him and detained him with the aid of the gun until the police arrived. At Vanderwater's behest, the police arrested Lopez on the charge of criminal trespass, searched him, and took him to the booking area of the Aurora Police Station, where Vanderwater also went.

The police station was housed in the same building as the Aurora Branch Court of the Illinois Sixteenth Judicial Circuit. The State's Attorney of Kane County also maintains an office in the building. On the night in question the court facilities of the Aurora Branch were locked, and no prosecutor or court personnel were present. Vanderwater was not assigned to sit in the Aurora Branch Court; he was assigned solely to the Geneva Branch. ²

When Vanderwater arrived at the police station he telephoned Gamble and asked him to come down and sign a complaint against Lopez. At that time Vanderwater contemplated charging Lopez with criminal trespass. Before Gamble arrived, however, the police searched Lopez again and found a key on his person. When this discovery was reported to Vanderwater, he drafted in longhand a "Notice to Appear" charging Lopez with theft of the key. Vanderwater's deposition testimony about his decision to charge Lopez with theft instead of criminal trespass was as follows:

Q. Your initial intent was to charge criminal trespass?

A. When I was at 128 West New York Street and my only knowledge was that he had broken into the place again, my only intent was criminal trespass of land.

When he started talking in terms of pleading guilty, my thinking was Like a couple of weeks ago, I had asked him specifically about the key. He denied the key. I found out about the key at the police station. Then my thinking changed to theft.

Q. Your thinking changed to theft while you were at the police station?

A. When I saw the key.

When Gamble arrived, he found Vanderwater with Daniel Toomey, one of the arresting officers, in the State's Attorney's office on the second floor of the police station building. These three being the only persons present, the evidence of what then occurred comes solely from their depositions. Gamble and Toomey signed the "Notice to Appear" Vanderwater had prepared, and Gamble also signed a blank complaint form. On the blank complaint form, Vanderwater certified in writing that Gamble had sworn to the truth of the allegations of the complaint. Vanderwater also signed a warrant for Lopez' arrest. Toomey testified that while the three were together Vanderwater stated that he would put Lopez away for 240 days in Vandalia State Prison. Vanderwater testified he probably said this in Gamble's presence. Gamble denied that he heard it said. Vanderwater also testified that the statement was "probably" made before Gamble signed the papers.

On a standard plea form, Vanderwater made entries indicating a guilty plea and a waiver of trial by jury. The form, thus modified, bears an illegible signature which Lopez says is not his.

While Lopez, according to his testimony, remained in his jail cell, he was, in absentia, arraigned, convicted, and sentenced by Vanderwater in the booking area of the police station. Vanderwater wrote on the bottom of the guilty plea form that Lopez had pleaded guilty, had been found guilty, and had been sentenced to Vandalia for 240 days.

The following day Vanderwater gave directions to personnel in the State's Attorney's office to type in the blank complaint form Gamble had signed. These directions were carried out.

Lopez remained in jail for six days. On October 22, 1975, at the request of an attorney representing Lopez, Vanderwater entered an order suspending the 240-day sentence and directing that Lopez be released from custody. The judgment of conviction was vacated, and the case against Lopez was dismissed on November 25, 1975.

As a result of the Lopez incident, Vanderwater was removed from office by the Illinois Courts Commission.

Lopez commenced this § 1983 action against Vanderwater, Gamble, and five police officers in 1977. The five police officers have been dismissed from the case by agreement. Extensive depositions were taken by both sides. In December 1978 the district court denied a motion for summary judgment by Vanderwater. Thereafter, Vanderwater moved for reconsideration and Gamble moved for summary judgment. The court then entered summary judgment in favor of both defendants. ³ Vanderwater was held to be protected by judicial immunity under Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 35 L.Ed.2d 331 (1978), and Gamble was held not liable because the facts showed no more than that he asked a judge to exercise his powers, which was insufficient to create liability in view of Sparkman v. McFarlin, 601 F.2d 261 (7th Cir. 1979) (in banc). This appeal followed.

II.

The doctrine of absolute judicial immunity, as it applies to suits under 42 U.S.C. § 1983, will protect a judge against liability for a given act if two conditions are satisfied. First, the act must not have been taken in the "clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 35 L.Ed.2d 331 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1872)). Protection may be afforded even if the act was prompted by malicious or corrupt reasons, "flawed by the commission of grave procedural errors," or taken in excess, but not in clear absence, of jurisdiction. Id. at 356, 359, 98 S.Ct. at 1104. ⁴ Second, the act must be a "judicial act." Id. at 360-62, 98 S.Ct. at 1106-1107. Sparkman stated,

The relevant cases demonstrate that the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity.

Id. at 362, 98 S.Ct. at 1107.

Lopez argues that Vanderwater acted in the "clear absence of all jurisdiction" because he acted outside a courtroom and had not been assigned to sit in Aurora or to hear the case. Before addressing these arguments, it is to be noted that Vanderwater was authorized by law to hear the kind of case in which he acted and in fact had general jurisdiction except in felony cases. ⁵ Lopez' argument that a judge has no jurisdiction outside a courtroom is without merit. Valid judicial acts are often performed outside the courtroom. ⁶ That the papers were signed in a police station instead of in a courtroom therefore does not mean that they were signed in clear absence of jurisdiction.

The district court was also correct in concluding that the absence of an assignment to the Aurora Branch of the court or the particular case did not result in clear absence of all jurisdiction. There is some dispute concerning whether the assignment requirement is jurisdictional under Illinois law, ⁷ but we think at most the absence of assignment rendered Vanderwater's actions in excess of, but not in clear absence of, jurisdiction. ⁸ Under Sparkman, this is not enough to...