Oppenheimer v. Ashburn

• Decision Date: 14 September 1959
• Citation: 343 P.2d 931,173 Cal.App.2d 624
• Court: California Court of Appeals Court of Appeals
• Parties: John G. OPPENHEIMER, Plaintiff and Appellant, v. Allen W. ASHBURN et al., Defendants. Thomas P. White, William C. Doran and Walter J. Fourt, Defendants and Respondents. Civ. 18508.

Page 931

343 P.2d 931

173 Cal.App.2d 624

John G. OPPENHEIMER, Plaintiff and Appellant, v. Allen W. ASHBURN et al., Defendants Thomas P. White, William C. Doran and Walter J. Fourt, Defendants and Respondents.

Civ. 18508.

District Court of Appeal, First District, Division 1, California.

Sept. 14, 1959.

As Corrected Oct. 8, 1959.

Hearing Denied Nov. 10, 1959.

John G. Oppenheimer, in pro. per.

Stanley Mosk, Atty. Gen., Edward M. Belasco, Deputy Atty. Gen., for respondents.

TOBRINER, Justice.

Plaintiff's complaint alleges liability of defendant judges under a statute which calls for forfeiture of an amount not exceeding $5,000 for refusal to grant an order for a writ of habeas corpus 'after a proper application is made.' As we point out infra, the complaint succumbs to a general demurrer because it consists of conclusionary pleadings, and, because, under plaintiff's theory that the section applies to the exercise of judicial judgment, it fails to state a cause of action since the statute is unconstitutional. We shall point out, likewise, that the court properly sustained the special demurrer as to misjoinder of causes and parties. We shall, finally, explain why we have concluded that trial costs were improperly granted to defendants.

Plaintiff's complaint, filed on December 6, 1957, charged Justices Ashburn, Richards and Fox with violating section 1505 of the Penal Code in that they 'wilfully and unlawfully' on August 14, 1957, denied plaintiff a writ of habeas corpus. Plaintiff therefore sought damages of $5,000 from each justice. Oppenheimer amended his complaint on December 17, 1957, repleading Count I of his first complaint, and alleging in Count II that Justices White, Doran and Fourt on December 26, 1956, violated the named section of the Penal Code in that: '[E]ach being then and there [Los Angeles County] judges * * * did wilfully, unlawfully and maliciously fail and refuse to grant an order for a writ of habeas corpus after a verified and proper application therefor was made and presented to each of them * * * on behalf of * * * [Oppenheimer], to his damage * * * of $5,000. * * *'

Defendants White, Doran and Fourt demurred to this complaint on the grounds of: (1) Failure to state facts sufficient to constitute a cause of action; (2) Improper joinder of causes of action in that Counts I and II related to separate and distinct transactions; and (3) Misjoinder of parties. The court on February 5, 1958, sustained this demurrer with ten (10) days' leave to amend. On March 25, 1958, defendants White, Doran and Fourt, pursuant to section 581, subdivision 3 of the Code of Civil Procedure, moved to dismiss for failure of plaintiff to amend within the designated time. The court thereafter signed a 'Judgment of Dismissal,' and awarded costs of trial to the defendants. Subsequently, plaintiff moved to 'strike, tax and deny' these costs claimed by defendants; this motion was denied. Plaintiff appeals from the Judgment of Dismissal, and the order denying his motion to strike, tax and deny all costs claimed by the defendants.

Since the crux of the complaint charges an alleged violation of Penal Code, section 1505, we set forth the section: 'If any Judge, after a proper application is made, refuses to grant an order for a writ of habeas corpus, or if the officer or person to whom such writ may be directed, refuses obedience to the command thereof, he shall forfeit and pay to the person aggrieved a sum not exceeding five thousand dollars, to be recovered by action in any Court of competent jurisdiction.'

As we have stated, we have found the complaint subject to a general demurrer upon two separate and independent grounds. We turn to the first: the complaint, framed on a structure of bare conclusionary pleadings, cannot stand.

Lincoln v. Fox, 1959, 168 Cal.App.2d 31, 335 P.2d 161, is decisive as to this issue. The First District Court of Appeal, Second Division, speaking through Justice Murray Draper, passing on almost identical facts, succinctly disposes of appellant's complaint: 'Application for the writ of habeas corpus is made by petition. 'If the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.' Penal Code, § 1474.

'The amended complaint alleges only that each judge 'did unlawfully fail and refuse' to grant an order for the writ after 'proper application therefor.' * * * This petition alleges that petitioner is confined 'under a void and invalid order of contempt, made by the Superior Court.' * * *

'It is apparent that these allegations are but conclusions. An appellate court is entitled to and does 'require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned.' * * * Plaintiff, seeking damages, cannot claim the benefit of greater presumptions than attach to an incarcerated person seeking relief from imprisonment.' 168 Cal.App.2d at page 33, 335 P.2d at page 162.

Obviously the conclusionary averments of the instant complaint are not admitted by demurrer (Howard v. City of Los Angeles, 1956, 143 Cal.App.2d 195, 197, 299 P.2d 294); they tender no issues of fact (Branham v. Mayor and Common Council of City of San Jose, 1864, 24 Cal. 585); 'add nothing to the substantive averments of the complaint' (Vallindras v. Massachusetts Bonding & Ins. Co., 1954, 42 Cal.2d 149, 151, 265 P.2d 907, 909); and are valueless in the disposition of the true issues of a controversy.

The conclusions of law in the instant complaint failed to state a cause of action; the court properly sustained the demurrer. The dismissal of the complaint upon motion of respondents was but the natural sequence of the failure to amend.

We proceed to the substantive question of the validity of section 1505 itself. In passing, we note the Legislature at its 1959 session amended the section to delete all reference to judges, retaining it only as to an 'officer or person to whom a writ of habeas corpus is directed.' Senate Bill No. 648, Ch. 559 of the Calif.Statutes of 1959 [West's Calif.Legislative Service, p. 769]. We must, of course, base our decision on the state of the law as of the date the complaint was filed. We do not believe the section can be constitutionally sustained.

We shall point out that the decisions of this state uniformly and consistently grant immunity to judges in the exercise of their judicial functions. The bedrock of this principle lies in the essential requirement for an independent judiciary in the structure of our government. And we shall set forth the force of these considerations against any legislative attempt to shackle such independence, particularly as it affects the concept of separation of powers.

The clear line of California decisions begins with the early case of Turpen v. Booth, 1880, 56 Cal. 65, which held that since a grand juror served in a quasi-judicial status he was not civilly responsible, no matter how erroneous his findings or how malicious his motive, for his action on the grand jury. In arriving at this holding the California Supreme Court quoted favorably from Bradley v. Fisher, 1871, 13 Wall. 335, 80 U.S. 335, 351, 20 L.Ed. 646 as follows: "* * * [J]udges of courts of record 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 and corruptly * * *."

The court soon followed this holding in Pickett v. Wallace, 1881, 57 Cal. 555. Here the Supreme Court, having adjudged appellant guilty of contempt of court, fined and sentenced him to imprisonment. Appellant sued Wallace, Chief Justice, and several associate justices for $100,000, alleging that defendants, sitting as a court, knew that he had not committed contempt, and that the court, not having acquired jurisdiction over his person, had 'maliciously' adjudged him guilty. The lower court sustained defendants' demurrer. In affirming, the Supreme Court cited Turpen v. Booth, supra, 1880, 56 Cal. 65, and stated: 'We are not aware of any principle upon which this action can be maintained. There is no question but that the Supreme Court of this State had jurisdiction to adjudge as to contempts, and to punish therefor.' 57 Cal. at page 557.

Not until many years later did the issue again arise. In Perry v. Meikle, 1951, 102 Cal.App.2d 602, 228 P.2d 17, plaintiff sued Judge Twain Michelsen for false imprisonment as a result of plaintiff's contempt of court. Defendant Michelsen filed a general demurrer, which the lower court sustained without leave to amend. The appellate court in affirming stated: '[I]t is clear from the complaint and exhibits that Judge Michelsen was acting as superior judge in a matter over which he had jurisdiction, that the proceeding was regular in all respects, and that there would be no basis for any action against him, even if the were not entitled to immunity from civil liability under the well-established and sound rule of public policy so well expressed by Justice Brewer of the U. S. Supreme Court, sitting as a Circuit Justice in Cooke v. Bangs, C.C., 31 F. 640, 642, as follows: 'With respect to all judicial officers * * * the settled law of the supreme court of the United States * * * is that, where they act within their jurisdiction, they are not amenable to any civil action for damages. No matter what their motives may be, they cannot be inquired into.'' (Italics added.) 102 Cal.App.2d at page 605, 228 P.2d at page 19. The court quoted from Platz v. Marion, 35 Cal.App. 241, at page 248, 169 P. 697, at page 700, to the effect that 'a judge could not be either respected or independent if his motives for his official actions or his conclusions, no matter how erroneous, could be put in question at the instance of every malignant or disappointed suitor.' 102 Cal.App.2d at page 606, 228 P.2d page 19.

In the recent case of Singer v. Bogen, 1957, 147...