Malina v. Gonzales

Decision Date25 June 1993
Docket NumberNo. 91-3757,91-3757
Citation994 F.2d 1121
PartiesThomas Martin MALINA and Mrs. Thomas Martin Malina, Plaintiffs-Appellees, v. Judge Douglas GONZALES, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Charles L. Patin, Jr., Charles S. McCowan, Jr., Roy A. Mongrue, Jr., Asst. Atty. Gen., Louisiana Dept. of Justice, Baton Rouge, LA, for defendant-appellant.

Theodor Allen Schirmer, Baton Rouge, LA, for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY *, District Judge:

JOHN D. RAINEY, District Judge:

This is an appeal from the denial of a motion to dismiss based on the district court's finding that a state district judge did not have immunity for his actions.

While driving home from work one night on Interstate 10, Plaintiff-Appellee Thomas Malina passed to the right of a slow moving vehicle. Malina honked his horn and motioned to the driver, who was Defendant-Appellant Judge Douglas Gonzales, of the Nineteenth Judicial District court for the Parish of East Baton Rouge, to move out of the "fast" lane.

Upset by Malina's honking, Judge Gonzales placed a flashing red light on his dashboard and pursued Malina's vehicle until Malina pulled over to the side of the road. Judge Gonzales opened the passenger side door of Malina's car and demanded to see Malina's driver's license. In response, Malina asked to see Judge Gonzales' identification. Judge Gonzales showed Malina his court I.D. and told Malina he had the authority to arrest him. Malina then drove off.

Three hours later, a Baton Rouge city police officer appeared at Malina's home and told Malina that Judge Gonzales wanted to see him in his court at 9:30 a.m. the next day. The officer stated that he was there unofficially as a favor to Judge Gonzales, but the Judge could issue a bench warrant for Malina's arrest if Malina did not appear in court.

Malina appeared at court the next morning, but found the courtroom closed to the public. When Judge Gonzales arrived, he instructed Malina to wait in the empty courtroom. A few minutes later, Judge Gonzales, a bailiff, and a deputy sheriff entered the courtroom. The bailiff said "all rise," and Judge Gonzales instructed Malina to approach the bench. No audio or stenographic record was made of the proceeding.

According to Malina, the Judge read from a book and stated that judges are police officers with the authority to arrest individuals. The Judge handed a green slip of paper to the bailiff and told Malina to appear before the duty-judge on May 2, 1988, concerning traffic violations. Malina asked with what he had been charged, and Judge Gonzales responded with "fleeing to allude," "resisting an officer," "public endangerment," "disobeying an officer," "reckless driving," and "leaving the scene." The Judge added that the charges would convince Malina to obey an order and pull over the next time anyone with a flashing light pulled alongside him. Malina responded that he did not feel comfortable stopping for unmarked vehicles with flashing lights because anyone can buy such a light.

At this point, Judge Gonzales cited Malina with contempt and sentenced him to five hours in jail. Malina was handcuffed, fingerprinted, photographed, and imprisoned.

Malina and his wife brought suit against Judge Gonzales in his official capacity and individually. In response, Judge Gonzales filed a motion to dismiss based upon official immunity. The District Court of the Eastern District of Louisiana denied Judge Gonzales' motion to dismiss the claim against him in his individual capacity, on the ground that the Judge was not entitled to judicial or qualified immunity. Judge Gonzales now appeals the denial of his immunity claim. We affirm in part and reverse in part.

I. Standard of Review

The denial of a motion to dismiss raising a colorable claim of immunity is appealable under the collateral order exception to the finality requirement of 28 U.S.C. § 1291. Williams v. Brooks, 945 F.2d 1322, 1325 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1996, 118 L.Ed.2d 592 (1992). The district court's denial of a motion to dismiss on immunity grounds presents a question of law, reviewable de novo. Id.

II. Judicial Immunity

Absolute judicial immunity extends to all judicial acts that are not performed in the clear absence of all jurisdiction. Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986). Thus, a judge has no immunity (1) for actions taken outside of his judicial capacity, or (2) for actions that are judicial in nature, but occur in the complete absence of all jurisdiction. Mireles v. Waco, --- U.S. ----, ----, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991). Judge Gonzales' actions form four separate incidents. The first is the stop on the highway. The second is Judge Gonzales' use of an officer to unofficially summon Malina. The third is the charging of Malina with various "crimes," and the fourth is the issuance of the contempt citation and five hour jail sentence.

In determining whether Judge Gonzales' actions were "judicial in nature," this Court considers four factors: (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity. McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972). The four factors are to be broadly construed in favor of immunity, and immunity should not be denied where the denial carries the potential of raising more than a frivolous concern in a judge's mind that to take proper action might expose him to personal liability. Adams, 764 F.2d at 297. In some situations, immunity is to be afforded even though one or more of the McAlester factors is not met. Id.

The relevant inquiry regarding the first factor--whether the precise act complained of is a normal judicial function--is to examine the "nature and function" of the act, not the act itself. Mireles, --- U.S. at ---- - ----, 112 S.Ct. at 288-89. The Court is to look to the particular act's relation to a general function normally performed by a judge. Id.

Except for the issuance of the contempt citation and the sentencing, none of Judge Gonzales' actions were judicial acts for immunity purposes. The first three incidents are not closely related to a general judicial function. Peace officers, not judges, stop motorists on the highway, and prosecutors, not judges, set the judicial machinery in motion by charging someone with a crime. It is well settled that charging a defendant is a prosecutorial function, not a judicial function. See Lopez v. Vanderwater, 620 F.2d 1229, 1235 (7th Cir.), cert. denied, 449 U.S. 1028, 101 S.Ct. 601, 66 L.Ed.2d 491 (1980). Additionally, Judge Gonzales' private use of an officer to unofficially summon Malina is not a judicial act, and is not closely related to a general judicial function. Consequently, Judge Gonzales can claim judicial immunity for neither the stop, the summons, nor the charging.

Judge Gonzales can, however, claim judicial immunity for the issuance of the contempt citation and the five hour jail sentence.

Citing someone for contempt is an act normally performed by a judge. Adams, 764 F.2d at 298. Likewise, issuing a sentence is a general judicial function. Lopez, 620 F.2d at 1235 (judge immune for actions of arraigning, convicting and sentencing). Both the contempt citation and the sentencing were "normal judicial functions." Furthermore, the contempt citation and the sentencing occurred in the courtroom and arose directly from Malina's visit to the Judge in his official capacity. Malina's appearance at court, despite the Judge's highly irregular "summons," was a visit to the Judge in his "official capacity" as a judge. See, Adams, 764 F.2d at 297. Consequently, Judge Gonzales' actions pass the "judicial nature" prong of the Mireles inquiry.

The second prong of the Mireles test states that a judge will lose his immunity if his judicial act occurred in the complete absence of all jurisdiction. Thus, this Court must determine whether Judge Gonzales had some subject-matter jurisdiction to issue the contempt citation and sentence. 1

Where a court has some subject-matter jurisdiction, there is sufficient jurisdiction for immunity purposes. Adams, 764 F.2d at 298. The question is whether Judge Gonzales merely acted in excess of his authority in issuing the contempt citation and sentence, and is thus protected by judicial immunity, or whether he acted in clear absence of all jurisdiction. See, My. Schwartz & J. Kirklin, I Section 1983 Litigation § 9.3 at 451 (1911). It is important to note that "judicial immunity is not overcome by allegations of bad faith or malice." Mireles, --- U.S. at ----, 112 S.Ct. at 288. It is the Judge's actions alone, not intent, that we must consider.

By law, a judge in Louisiana may hold someone in contempt and sentence him for "[c]ontumacious, insolent, or disorderly behavior toward the judge." La.Code Civ.Proc.Ann. art. 222. See also, La.Code Civ.Proc.Ann. arts. 221 and 223. Thus, Judge Gonzales had some subject-matter jurisdiction over Malina's actions within his courtroom. Malina argues, however, that he was not sentenced for his behavior within the courtroom, but that he was sentenced for what occurred on the highway.

The district court assumed Malina's version of the facts as true, and found that Judge Gonzales essentially "sentenced" Malina to jail for the "charges" brought against him. It is not clear from the record if charges were ever filed against Malina. For the purpose of a motion to dismiss, however, this Court must assume all well-pleaded...

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