Rivello v. Cooper City

• Decision Date: 21 November 1975
• Docket Number: No. 74--1291,74--1291
• Citation: 322 So.2d 602
• Parties: Wayne RIVELLO, Appellant, v. COOPER CITY, a Municipal Corporation, and John Harrington, individually, jointly and severally, Appellees.
• Court: Florida District Court of Appeals

Page 602

322 So.2d 602

Wayne RIVELLO, Appellant, v. COOPER CITY, a Municipal Corporation, and John Harrington, individually, jointly and severally, Appellees.

No. 74--1291.

District Court of Appeal of Florida, Fourth District.

Nov. 21, 1975.

Charles T. Whitelock and Martin H. Cohen of Hurth & Whitelock, Fort Lauderdale, for appellant.

Richard A. Sherman of Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for appellee, Cooper City.

Ray Sandstrom of Sandstrom & Hodge, Fort Lauderdale, for appellee, John Harrington.

DIAMANTIS, GEORGE N., Associate Judge.

The Appellant-Wayne Rivello, who was the plaintiff below, appeals a final order dismissing his amended complaint against the appellees, City of Cooper City and John Harrington, who was the City's Municipal Judge.

The appellant's amended complaint seeks to charge the appellee, John Harrington, in three counts, with 1) negligence, 2) false imprisonment, and 3) malicious prosecution. The amended complaint seeks to charge the City with these three (3) claims based upon the theory of respondeat superior.

In summary, the amended complaint alleges that the appellant was sentenced by Judge Harrington to twenty (20) days in jail and a three hundred ($300.00) dollar fine, which was suspended on the condition that the appellant be placed on ninety (90) days probation during which time he was required to pay the sum of fifty ($50.00) dollars to a third party as restitution; that appellee-Harrington, in violation of statutory duty, did not place the appellant under the supervision of the Parole and Probation Commission; that after his probationary period was completed, Judge Harrington revoked the appellant's probation for having failed to comply with the condition of paying the fifty ($50.00) dollars restitution and issued an order of commitment, imprisoning the appellant for a period of twenty (20) days; that he was never advised of his right to have counsel and that the appellees did not furnish him counsel when he demanded the same; that he was incarcerated for a period of time until he was released upon a writ of habeas corpus issued by the circuit court; and that he was damaged in excess of twenty five hundred ($2500.00) dollars.

The first Count, which charges negligence, basically alleges that the appellees had an initial duty to place the appellant under supervised probation for the period of ninety (90) days and not on unsupervised probation; that Judge Harrington had a duty to inform the appellant of the length of his probation; and that once the ninety (90) day probationary period had expired, the appellees had a duty to release the appellant, all of which duties were breached by the appellees resulting in injury to the appellant.

In Count II, which claims false imprisonment, the appellant, in essence, alleges that these acts of the appellees were committed unlawfully without power which resulted in the false imprisonment of the appellant.

In Count III, which charges malicious prosecution, the appellant basically claims that the probation revocation proceeding was unlawful or maliciously instituted by appellee-Harrington, and the subject habeas corpus issued by the circuit court terminated these proceedings in favor of the appellant.

The crucial point in this appeal involves the question of whether Judge Harrington is immune from suit under the long established doctrine of judicial immunity.

In Florida, 'a judge of a court of superior or general jurisdiction is not civilly liable for his judicial acts in excess of his jurisdiction when such acts involve affirmative decisions of the fact of the jurisdiction of such court, even though such decisions may be wholly erroneous, provided there is not a clear absence of jurisdiction.' McDaniel v. Harrell, 81 Fla. 66, 87 So. 631, at page 632.

Interestingly, in McDaniel v. Harrell, supra, the Florida Supreme Court held that a plea of judicial immunity was good to a declaration alleging the plaintiff was arrested, convicted and thereafter imprisoned upon failing to pay a fine for violating a city ordinance which was declared unconstitutional and void in a subsequent habeas corpus proceeding filed by that plaintiff. The Court, at page 634 of 87 So., pointed out that the defendant, who was mayor and municipal judge, had a jurisdiction of the person and subject-matter 'when the case giving rise to this action was under consideration.'

The Florida Supreme Court in McDaniel v. Harrell, supra, cites with approval the landmark United States Supreme Court opinion of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872). The Bradley decision, in which a plea of judicial immunity was upheld, involved a suit by an attorney against the judge presiding at the trial of one John H. Suratt for the murder of Abraham Lincoln. The trial judge, at the conclusion of that murder trial, without hearing and notice, directed that an order be entered in the court's records striking the name of the plaintiff-attorney from the roll of attorneys practicing in that court because of the attorney's rude conduct during a recess in that murder trial. Bradley, the apparent focal point of all discussion regarding judicial immunity, gave the following example of judicial conduct, which, although excessive, would still be considered immune from damages.

'But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, 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.' Bradley v. Fisher, supra, 80 U.S. (13 Wall.) at page 352.

The California case of Ceinar v. Johnston, 134 Cal.App. 166, 25 P.2d 28 (Cal.App.1st 1933), which we have found, is analogous to the fact situation in the case at bar. In that case, the defendant, who was a justice of the peace, suspended the plaintiff's sentence indefinitely after he plead guilty to a charge of disturbing the peace, and the defendant entered a judgment to the effect that the plaintiff's sentence shall take full force at any time that the plaintiff failed to make certain monthly payments of child support to his wife. The plaintiff made these payments for approximately three or four months and then approximately four months after the plaintiff ceased making the support payments, the defendant, as justice of the peace, executed an abstract of the proceedings theretofore commenced against the plaintiff and endorsed thereon a commitment of the plaintiff. In Ceinar v. Johnston, supra, the California Appellate Court, citing Bradley, upheld a defense of judicial immunity to a false imprisonment action and at page 29 of 25 P.2d the court stated as follows:

'If, however, the justice of the peace acquires jurisdiction of the person and jurisdiction of the subject-matter, his acts thereafter will be considered as judicial, and for which he will not be held civilly liable. 35 C.J. 471. In Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 354, 20 L.Ed. 646, Mr. Justice Field, writing the opinion of the court, said: '. . . Against the consequences of their erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort. . . .'

'If it be asserted that the defendant had lost jurisdiction at the time he rendered the sentence, the rule is the same. In other words, having acquired jurisdiction of the subject-matter and of the person, the judicial officer is not liable merely because his order was made too late. Horton v. Auchmoody, 7 Wend. (N.Y.) 200.' (Emphasis supplied).

Further, three Federal Court of Appeals' decisions, which we have also found, are pertinent to the case at bar. See Williams v. Sepe, 487 F.2d 913 (5 Cir. 1973); Jacobson v. Schaefer, 441 F.2d 127 (7 Cir. 1971); Gay v. Heller, 252 F.2d 313 (5 Cir. 1958).

In Williams v. Sepe, supra, the Fifth Circuit upheld a summary judgment in favor of Judge Sepe based upon the plea of judicial immunity. In that case, Williams had apparently misrepresented himself as Judge Sepe's law clerk and the Judge had him committed for an indirect contempt of court. Williams was not given 'written notice of the criminal contempt charged' as required by Rule 3.840 of the Florida Rules of Criminal Procedure, 34 F.S.A., before he was ordered arrested by Judge Sepe. Williams contended that this deviation from the statutory procedure resulted in an absence of subject matter jurisdiction and that the judge, therefore, was not shielded by judicial immunity. The Fifth Circuit, in Williams v. Sepe, rejected these contentions and upheld the defense of judicial immunity and cited Bradley where at page 914 of 487 F.2 d, the Court stated:

'While it may be true that the procedural irregularities would necessitate a reversal of a conviction if one had been obtained on the facts of this case, see, e.g., State ex rel. Giblin v. Sullivan, 1946, 157 Fla. 496, 26 So.2d 509, the test for the abrogation of judicial immunity is whether there is a Clear absence of all jurisdiction over the subject matter. Bradley v. Fisher, 1872, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646. The policy underlying the doctrine requires that its application not depend on the determination of 'nice questions of jurisdiction.' Sullivan v. Kelleher, 1 Cir. 1968, 405 F.2d 486, 487. The defects in the procedure employed in this case will not support a conclusion that there was a clear...