### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 1, 2003 Session NEIL M. FRIED MAN v. LYNN W. BRO WN Direct Appeal from the Circuit Court for Carter County No. C8224 Hon. William H. Inman, Circuit Judge by designation

No. E2002-01615-COA-R3-CV May 14, 2003

Plaintiff sued Trial Judge for

wrongful incarceration. Trial Court held Judge was immune for actions taken ag ainst plaintiff in c ourt. On a ppeal, w e affir

m. Tenn. R. App.P.3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d.

H ERSCHEL P ICK

ENS F RANKS , J. delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., concurred and filed a separate opinion, and D. M ICHAEL S WINEY , J., joined. Thomas E. Cowan, Jr., Elizabeth ton, Tennessee, f

or Appel lant. Paul G. Summers, Attorney Gene ral and Reporter, M ichael E. Moore, Solicitor General and Kimberly J. Dean, Deputy Attorney Gene

ral, Nashville, Tennessee, for Appellee.

OPINION

In this action against a trial judge, the Trial Court dismissed the action on the grounds of judicial immunity, holding“the b ar of judicial immunity is not absolute, but the recog nized exceptions are ina

pplicabl e herein, since Jud ge Br own’s acts were judicial in nature, and he enjoyed general subject matter jurisdiction over the kind of ca se involved.”

On appeal, plaintiff insists that the Trial Court’s action in revoking plaintiff’s probation and ordering him to serve out the remainder of his suspended sentence after the term of th e o ri gi na l s en te nc e e xp ir ed , w as no t p ro te ct ed by j ud ic ia l i mm un it y.1 At Plaintif f’s court appearance on D ecember 22 , 1998, the Court reduced the time to be served to four months.

-2- Plaintiff was convicted by a

jury of a third DUI

offense and driving on a revok e d license. The judgment Order was entered on January 30, 1997, and sentenc ed him to 11 months and 29 day s’ incar

ceration in the county

jail, with six months suspended on probation on the DUI, and 6 months for the revoked license charg e, suspended except for 30 days. He wa s fined $5,500.00 and his driving privileges were re voked for six years. Upon c onclusion of the post-tri al and appella te procee dings, he commenced serving four mont hs begi nnin g on January 4, 1999. 1 There were no further legal proceedings in this matter during the balance of

the probationary

term, which expired by law in January , 2000.

On August 17, 2000, Defendant Brown initiated the issuance of an arre st warrant agains tPlaintiff for violating the terms of probation, and defendant was re-inc arcerated from Aug ust 17 to December 21, 2000. At a hearing on O ctober 18, 2000 plaintiff’s Motion to Dismiss for lack of jurisdiction was denied, despite conc urren ce by the assist

ant attor ney gener al pro tem recommending that t he pro ceedin gs against the plaintiff be terminated. Plaintiff ultimately gained his release on Order from the Court of Criminal Appeals, a nd ul ti ma te ly the Court of Criminal Appeals held the Trial Court had no authority to revoke the probation and ordering the serving of the original sentence. See State v. Friedman, 2001 Tenn. Crim. App. Lexis 778 (Sept. 24, 2001).

Plaintiff then file d this acti on, alleg ing fal se imprisonment, outrageous conduct, and violation of civil rights pursuant to 42 U.S.C. § 1983.

A motion to dis miss for f ailure to st ate a cl aim te sts the legal sufficiency of the Complaint, which sha

ll be liberally construed in favor of the plaintiff and all of its allegations taken as true. Huckeb

y v. Span gler, 521 S.W.2d 568, 571 (Tenn. 1975). The doctrine

of judicia

l immunity

was esta blished in

modern A

merican law in Bradley v. Fisher

, 80 U.S. (1872 ), and fo llowed in Tennessee in Web b v. Fishe r, 72 S.W. 110 (Tenn. 1902). The genera

l rule is th at a

judge is immune from a civil action for damage s for his or her judicial actions if

the actswere c omm itted withi n the jurisdiction of his/her court. Heath v. Cornelius, 511 S.W.2d 68 3, 684 (Tenn. 1974). “Few doctrines wer e more solidly established at common law than t

he immunity

of judge s f

or acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 54 7, 554 (19 67). The purpose of immunity

is to assure that judges will be at liberty to carr

y out their functions with complete indepe ndence and “insulat[ed] . . from vexatious actions prosecuted by

disgruntled

litigants.” Forrester v. White, 484 U.S. 21 9, 225 (19 88). I t is a “general principle of

the highest importance that a judicial officer should be f ree to act uponhis own convicti ons, without apprehension of personal co ns equences to himself.” Bradley. This doctrine also serves t

o establis h appella

te procedures asa sta

ndard method for c orrect ing judicial erro

rs. Forrester at 225: When officia

ls are thr eatene d with

persona l liability for act s taken pu

rsuant to their official duties, they may

well be induced to act with an excess of caution or otherwis e-3- to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their c onduct. Id. at 223. Im munity is not abrogated, even if the judge a cts maliciously or corruptly

. Pierson , 386 at 554

. Heath v. Cornelius , 511 S.W.2d 6 83, 684 (Tenn. 1974 ); Mireles v. Waco , 502 U.S. 9, 11 (1991).

In a good analy sis, the United States 11 th Circuit Cou rt of Appea

ls i n Harris v. Deveaux, 780 F.2d 911 (11 th Cir. 1986), in considering a Section 1983 action against a judge said:

In enacting 42 U.S.C. § 1983, Congre ss did not abrogate the doctrine of judicial im mu ni ty. Stump v. Sparkman , 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Judicial immunity

is an abso lute im

munity ; itapplies e

ven wher e a judg e acts ma li ci ou sl y. Id. at 3 56, 98 S .C t. At 1 104 . In Stump , the Supreme Court established a two-par t test for determi ning whether a judge enjoy s immunity from money damages under se ction 1983 . First, w hether t he judg e dealt w ith the plaintiff in a judicial capacity

. Id. at 3 62, 98 S .C t. At 1 007 . If not, then judicial immunity does not ap pl y. If so, then the question is whether the judge acted in the

“clear absence of all jurisdiction”. Id. at 357, 98 S.Ct. At 1105. . . . The test for a

nalyzing whe

ther a pa rticular conduct i s judicial i s to consider the nature of the act itself, i.e., whether it is a function normally performed by

a judge and the conduct occurr ed while the judge was acting in his judicial capacity. S tump, 453 U.S. 349, 362 (1978). See also , King v. Love, 766 F.2d 962 (6th Cir. 1985). If the act wa s based upon an erroneous view of the law, or otherwis e totally

invalid fr om a proc edural s tandpoint , it is no les s a judicial act, just an incorrect one. Bradley 80 U.S. at 357.

The Judge ’s action s as desc ribed in th

e Complain

t, were j udicial a

cts. As to the sec ond excep tion to judicial immunity, the clear abse nce of all jurisdiction, the law diff

erentiates betwee

n those acts taken in

complete absence of all jur isdiction, and those taken me rely in the exce ss of juris diction: A distinction must be here ob served bet ween excess of jurisdiction and the clear absenceof all jur

is diction ove r the subject-matter. Where there is clearly no jurisdiction over the

su bject-ma

tt er an y au th or it y ex er ci se d i s a us ur pe d a ut ho ri ty, andfor 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 a nd extent in which the jurisdict

ion shall be exerc ised are

gener ally as much qu estions fo

r his determination as any

oth er qu estions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.-4-

Bradley, 80 U.S. 355, 351-352 (1872).

The law is well-settled that a trial court which merely acts in excess of

authority is not acting in the “clear absence of all jurisdiction”. Stump, 435 U.S. a t 356; Sevier

v. Turner , 742 F.2d262 (6 th Cir. 1984). For this prong of the Stump test, the a naly tical key is if the action i n question involves the subject matter over the ty pe of case the judge n ormally

has jurisdiction to hear, then the judge has not acted in the absence of jur isdiction. Id.; Lopez v. Vanderwat er, 620 F.2d 1229, 1234 (7 th Cir. 1980) . Gener ally , if there

is subjec t matter ju

risdictio n in a par

ticular a rea, the re will be suf ficient j uris diction for the purposes of immunity. Barnes , 105 F.3d 1122. Even “grave proceduralerrors” by

the cour t, do not demonstrate a clear absence of a ll jurisdiction or deprive the judge of the shield of immunity. Stump, 435 U.S. 349

. The def endant he rein, a c riminal c ourt circ

uit judge, has exclusive original jurisdiction of all criminal matters. See Tenn. Code Ann. § 16-10-192 and40-1-108. Under the allegations of the complaint, def endant herein acted i n excess of his jurisdiction, but it

cannot be said that he acted in the clear a bsence of all jurisdiction under the above cases. We hold thatthe Complaint has not alleged sufficient facts to abrog ate defendant’s judicial immunity. For the foreg oing reasons, we affirm the Judgment of the Tr i a l Court and remand, with the cost of the appeal assessed to the plaintiff, Neil M. F riedman.

_________________________ H ERSCHEL P ICKENS F RANKS , J.