McGlasker v. Calton

• Decision Date: 17 July 1975
• Docket Number: Civ. A. No. 75-161-N.
• Citation: 397 F. Supp. 525
• Parties: Charles A. McGLASKER, Plaintiff, v. Fate CALTON, etc., Defendant.
• Court: U.S. District Court — Middle District of Alabama

397 F. Supp. 525

Charles A. McGLASKER, Plaintiff, v. Fate CALTON, etc., Defendant.

Civ. A. No. 75-161-N.

United States District Court, M. D. Alabama, N. D.

July 17, 1975.

Anne M. Weiss, Montgomery, Ala., for plaintiff.

Jimmy S. Calton, Eufaula, Ala., for defendant.

MEMORANDUM OPINION

VARNER, District Judge.

This cause is submitted on Defendant Calton's motion for summary judgment and the affidavits of various persons made in support and in opposition to said motion for summary judgment.

This cause, as finally amended, claims damages, costs and general relief against the Defendant, Fate Calton, individually and in his capacity as Judge of the Eastern District Court of Barbour County, Alabama, under 42 U.S.C. § 1983.

Defendant Calton's affidavits contain general conclusory statements by various people that all of the acts complained of which Judge Calton actually did were done in his capacity as Judge of said Court. That conclusion should usually be made by this Court rather than by witnesses. Judge Calton's motion for summary judgment is based on his contention that, if he were acting as Judge at the times of the acts complained of, he is immune from suit therefor under the doctrine of judicial immunity and, if he were not acting as Judge at said times, no federal jurisdiction is stated because he was not acting under color of State law as required by § 1983.

The Plaintiff's affidavit is far more illuminating and gives this Court both an idea of what the Plaintiff contends happened on the occasion and a clear, undenied factual statement from which this Court may decide whether or not Judge Calton was actually acting within his jurisdiction at the times complained of.

According to Plaintiff's affidavit, before March 5, 1975, he was a public schoolteacher in Barbour County, Alabama, and on March 3, 1975, was in the Court presided over by Judge Fate Calton on a charge of driving without a driver's license. Judge Calton informed the Plaintiff that he had bribed the Department of Public Safety, had perjured himself, and was in contempt of Court. Judge Calton then directed an officer to take Plaintiff downstairs and lock him up. On the following day, in chambers, the Court informed the Plaintiff that he was, as a schoolteacher, setting a bad example for students and that charges against him would be dropped if he would leave Barbour County and go somewhere else and start over. The Court "suggested" that the Plaintiff write letters to the Superintendent of Education resigning his teaching job and directing the Superintendent to pay the Eufaula Bank and Trust Company and the Central Bank of Eufaula $212.80, which the Plaintiff owed them, from money held by the Board of Education for payment of Plaintiff's salary.

Based on this undenied testimony, this Court is of the opinion that Judge Calton, at the time he sentenced the Plaintiff to 30 days in jail if sentenced for contempt of Court¹ and at the time he bargained with the Plaintiff to dismiss proceedings against him if the Plaintiff would pay his debts and leave Barbour County,² acted without legal authority.

The Court further finds that Judge Calton was acting under color of State law. Clearly, he would not have been in the position to do what he did had he not been in the position of being Judge at that time and place.

The worst that can be said for Judge Calton's actions is that, when the Plaintiff was brought before him for a charge of driving while his driver's license was revoked (and possibly for failure to appear in Court to respond to several prior violations), the Court considered other charges: that in the fall of 1974 Plaintiff received two speeding tickets and a ticket for an improper license plate on his automobile; that on November 26, 1974, Plaintiff received a ticket for failure to appear in Court and his driver's license was revoked; that Plaintiff mailed $60.00 to the State Department of Public Safety in an effort to pay one of his fines and to have his driver's license reinstated; and that Plaintiff had outstanding indebtedness to lending organizations in the City of Eufaula of over $200.00. As a result of all of these matters or one or more of them, Judge Calton felt that the Plaintiff was not setting a good example for students which he taught in a public school in Barbour County and, therefore, bargained with the Plaintiff that, if Plaintiff would leave his job in Barbour County on the basis that his effectiveness as a public schoolteacher had been terminated by the actions aforesaid, the Court would dismiss all pending charges against the Plaintiff. Further, the Defendant Judge Calton recommended that the Plaintiff agree that the Superintendent of Education withhold from Plaintiff's salary check a sum of money sufficient to pay Plaintiff's outstanding indebtedness to the two lending institutions in Eufaula. Under such coercion as then existed, the Plaintiff agreed to Judge Calton's suggestions.

The motion for summary judgment places squarely before this Court the question of whether judicial immunity applies to bar suit against Judge Calton for his wrongful conduct associated with disposition of the case or cases of the Plaintiff in the Barbour County Court.

The leading American authority on the subject of judicial immunity is the case of Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646, in which the Court held that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. In discussing what is or is not a judicial act, the Court stated the following:

"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 and 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. 13 Wall. 351, 352, 80 U.S. 351, 352, 20 L.Ed. 646. * * *." (emphasis added)

Plaintiff relies primarily on two cases: Cross v. Byrum, infra, and Wade v. Bethesda Hospital, infra. The Court in Cross v. Byrum, 348 F.Supp. 196, emphasizes that when immunity is invoked by motion to dismiss it should not be granted unless nonliability appears to a certainty from the pleadings but that, after development of evidentiary facts, the case might well follow the fate of People of Mississippi ex rel Giles v. Thomas, 464 F.2d 156, 159 (5 C.C.A. 1972) in which plaintiff under 42 U.S.C. § 1983 sued the justice of peace, among others, for her wrongful eviction after summons requiring her to show cause on or before September 27, 1970, why she should not be evicted for nonpayment of rent. The law provided that she respond in not less than three nor more than five days from September 20, 1970, so the return date was in error.³ On September 25, 1970, the defendant justice of peace entered a default judgment against the tenant (plaintiff in the § 1983 suit) ordering her eviction. The Court of Appeals found the "trial court was correct in ruling that those defendants (including the justice of peace) were immune from suit as judicial officers under the circumstances of this case", at pp. 159-160, citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L. Ed.2d 288. In Pierson, at p. 554, 87 S. Ct. at p. 1218, the Court reaffirmed the principles set out in Bradley v. Fisher, supra, and observed that:

"It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to

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