* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ROBERT NEWTON,

Plaintiff-Appellant,

v. GAYLON BUCKLEY, Judge; DARLA SERASSIO, Riverton Justice Court Clerk, Defendants-Appellees. No. 96-4202 (D.C. No. 95-CV-406-B) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because we dispose of this case on absolute immunity grounds, we need not

consider whether summary judgment would also have b een proper based on plaintiff’s alleged failure to comply with Local Ru le of Practice 202. -2- Plaintiff Robert Newton appeals the district court’ s entry of summary judgment in favor of defendants Gaylon Buckley, a m unicipal court judge, and Darla Serassio, his clerk, in this 42 U.S.C. § 1983 suit alleging defendants violated his constitutional rights. We affirm base d on the district court’s finding that both defendants are absolutely immune from dam ages for the acts at issue here. 1
I Plaintiff’s claims arise out of his February 1990 arrest in Riverton City, Utah, for several traffic violations. The arrestin g officer issued plaintiff a citation directing him to appear in Riverton City J ustice Court on February 22, 1990. Plaintiff refused to sign the citation and d id not appear in court. On April 25, 1990, defendant Serassio, in her capacity as Cl erk of the Riverton City Justice Court, prepared an information charging that plaint iff had “committed the offense of willfully failing to appear, a Class B misdemean or in Riverton City.” I R., Doc. 23, Ex. B, Ex. 1. Serassio stamped Judge Buck ley’s signature on the information. On August 7, 1990, Serassio prepared a bench warrant for plaintiff’s arrest and stamped the document with Judge Buckley’ s signature.-3-

In May 1993, when a deputy sheriff attempted to serve the information and bench warrant on plaintiff, an altercation ensued a nd service was not completed. As a result of the altercation, the county attorney filed additional charges against plaintiff and the Third Circuit Court issued a warr ant for his arrest. Plaintiff was arrested on May 24 on all charges and was held in t he county jail. While in jail, plaintiff filed a motion challenging the Riverton C ity Justice Court’s jurisdiction over him. On May 27, 1993, plaintiff was arraigned on the ori ginal traffic charges and on the charge of failure to appear (“FTA”). Judge Buckley overruled plaintiff’s challenge to his jurisdiction and instructed plaint iff to enter a plea. When plaintiff continued to argue about jurisdiction and refused to enter a plea, Judge Buckley found plaintiff in contempt, fined him $500 and sentenced him to thirty days in jail. The next day, plaintiff’s neighbor a nd his newly retained attorney both contacted Judge Buckley and asked that plainti ff be released on the contempt order because of his poor health and family respons ibilities. Judge Buckley agreed and instructed Serassio to issue an order of recall, which she did on June 2, 1993. On June 28, 1993, Judge Buckley dismissedthe original traffic charges against plaintiff, as well as the FTA and contempt charges. Plaintiff then brought this action seeking damages against defendants for violating his civil rights. Plaintiff alleged thatJudge Buckley acted without-4-

jurisdiction in bringing plaintiff before him to an swer charges in 1993 because the statute of limitations on the underlying traffic offenses had run, and the information and bench warrant on the FTA charge were impro perly issued. Plaintiff also challenged Judge Buckley’s imposition of a fine and thirty-day jail sentence for contempt, because plaintiff was improperly before t he court in the first instance and because a justice court does not have authority to impose a sentence for contempt of thirty days’ duration. Plaintiff also alleged that Serassio acted without jurisdiction in preparing and issuing the i nformation and bench warrant for FTA and that she stamped the judge’s signature on these documents without authority.
II In Utah, justice courts, which are not courts of re cord, see Utah Code Ann. § 78-5-101, “have jurisdiction over class B and C m isdemeanors, violations of ordinances, and infractions committed within their territorial jurisdiction, except those offenses over which the juvenile court has ex clusive jurisdiction,” id. § 78-5-104. Justice court judges, in turn, “have t he same authority regarding matters within their jurisdiction as judges of courts of record.” Id. § 78-5-106(1). Under Utah law, when a police officer arrests someo ne on a misdemeanor or infraction charge, the officer can issue the arr estee a citation, directing him to appear in court at a particular time and location, rather than take the arrestee into-5-

custody. See id. §§ 77-7-18, 77-7-20. The officer must then file acopy of the citation with the court identified in the citation, see id. § 77-7-20(1); the citation may be used, instead of an information, to which th e arrestee may plead guilty or
no contest. See id. § 77-7-21(1). If, however, the arrestee fails to appear, pleads not guilty, or fails to deposit bail on or before t he appearance date, then an information will be filed on the charge(s) listed i n the citation. See id. § 77-7-21(2). An arrestee who fails to appear on acitation is subject to arrest, unless he has previously posted bail and has volunt arily agreed to forfeit the bail without appearance. See id. §§ 77-7-19(3), 77-7-21(1)(c). Here, although plaintiff failed to appear before the justice courtas required by the citation, no information was ever filed on the original traffic charges. Utah law further provides that “[a]ny person who wi llfully fails to appear before a court pursuant to a citation issued under the provisions of Section 77-7-18 is guilty of a class B misdemeanor, regardl ess of the disposition of the charge upon which he was originally cited.” Id. § 77-7-22. For justice court cases like plaintiff’s, Utah Code Jud. Admin. Rule 4-701(2) provides:

If the defendant fails to appear or pay the bail am ount within forty days of the date the citation was issued: (A) On an infraction or misdemeanor charge, the cl erk may prepare an information or refer the case to the pro secutor’s office, which may elect to prepare and file an information for Failure to Appear, a Class B misdemeanor. The court may then issue a warrant on the Failure to Appear only, but not on the under lying offense[.]-6-

In this instance, the clerk, defendant Serassio, pr epared the information herself. She later prepared the bench warrant, whi ch erroneously listed the traffic offenses, as well as the FTA offense. Serassio stamped Judge Buckley’s signature on both the FTA information and the bench warrant. Pursuant to Utah Code Jud. Admin. Rule 4-403(1)(B), “[a] clerk may, with the prior approval of the judge or commissioner, us e a ‘signature stamp’ in lieu of obtaining the judge’s or commissioner’s signature o n . . .bench warrants[.]” If the clerk uses a signature stamp on a bench warrant, th e clerk should sign her name on the document directly beneath the judge’s stampe d signature. See Rule 4-403(2). Serassio’s signature does not appear on the copy of the bench warrant in the record on appeal. See I R., Doc. 23, Ex. B, Ex. 2. Rule 4-403 further provides:

(3) All other documents requiring the judge’s or c ommissioner’s signature shall be personally signed by th e judge or commissioner, unless the judge or commissioner, on a docu ment by document basis, authorizes the clerk to use the judge’s or commissioner’s signature stamp in lieu of the judge’s or commissio ner’s signature. On such documents, the clerk shall indicate in writ ing that the stamp was used at the direction of the judge or commissio ner and shall sign his or her name directly beneath the stamped imprin t of the judge’s or commissioner’s signature. The copy of the FTA information in the record on ap peal does not contain any notation by Serassio that she used the judge’s sign ature stamp at his direction, nor does it contain her signature beneath the judge’s s tamped signature.-7- III We first turn to plaintiff’s claims against Judge B uckley. “[G]enerally, a judge is immune from a suit for money damages.” Mi reles v. Waco , 502 U.S. 9, 9 (1991) (per curiam). The Supreme Court has recogni zed two exceptions to this immunity from suit: (1) “a judge is not immune fro m liability for nonjudicial actions, i.e. , actions not taken in the judge’s judicial capacity”; and (2) “a judge is not immune for actions, though judicial in nature, taken in complete absence of all jurisdiction.” Id. at 11-12. Plaintiff does not dispute that the cha llenged actions of Judge Buckley were all judicial in natur e. Therefore, we are concerned solely with whether Judge Buckley acted in the comp lete absence of all jurisdiction. “[T]he scope of the judge’s jurisdiction must be co nstrued broadly where the issue is the immunity of the judge.” Stump v. Sparkman , 435 U.S. 349, 356 (1978). Neither a judge’s “commission of grave pro cedural errors,” id. at 359, nor his action “in excess of his authority,” id. at 356, will deprive the judge of immunity. A judge acts in the clear absence of all jurisdiction when he “acts clearly without any colorable claim of jurisdiction .” Snell v. Tunnell , 920 F.2d 673, 686 (10th Cir. 1990); see also Lerwill v. Joslin , 712 F.2d 435, 438 (10th Cir. 1983) (“A judge is absolutely immune from a section1983 suit for damages only-8-

for (a) judicial acts (b) for which the judge has at least a semblance of subject matter jurisdiction.”). “[A] judge acts in excess of jurisdiction if the ac t complained of is within his general power of jurisdiction but is not author ized because of certain circumstances,” whereas there “is a clear absence of juri sdiction when a court of limited jurisdiction attempts to adjudicate a case outside of its jurisdiction, such as when a probate court conducts a criminal trial.” Duty v . City of Springdale , 42 F.3d 460, 462 (8th Cir. 1994) (quotations omitted); see also Stump , 435 U.S. at 357
n.7. Plaintiff does not dispute that the underlying misd emeanor traffic charges are of the type that are within the subject matter jurisdiction of the Riverton City Justice Court. Nor does plaintiff contend that Jud ge Buckley has no subject matter jurisdiction over a class B misdemeanor aris ing from an arrestee’s failure to appear on a traffic citation. Even accepting as true plaintiff’s contentions that (1) Judge Buckley no longer had jurisdiction over the underlying traffic offense when plaintiff was arrested and arraigned in 1993, because the statute of limitations had passed, (2) Judge Buckley and/or his clerk did not follow the correct procedures in issuing the information and bench warrant for failure to appear, and (3) Judge Buckley gave plaintiff a longer sentence on the contempt charge than justice court judges have authority to impose, the most these contentions show is2 Plaintiff concedes in his reply brief that Judge Bu ckley is immune from

damages for his actions with regard to the contemptcharge, since the 30-day sentence was merely in excess of the court’s jurisd iction. See Reply Br. of Appellant at 8. -9- that Judge Buckley exceeded his jurisdiction. Plai ntiff has not established that Judge Buckley acted in the absence of all jurisdict ion in performing any of the challenged acts. 2 Therefore, the district court correctly entered s ummary judgment in favor of Judge Buckley on the basis of abso lute immunity.
IV We turn, then, to plaintiff’s claims against Judge Buckley’s clerk, Ms. Serassio. Plaintiff contends that Serassio had no authority to issue either the information or the bench warrant on the FTA charge and that she did not follow proper procedure in preparing and issuing these doc uments. In addition to judges, “others performing judicial or ‘quasi-judicial’ functions enjoy absolute immunity from monetary dam ages for a limited scope of actions.” Russ v. Uppah , 972 F.2d 300, 303 (10th Cir. 1992); see also Henriksen v. Bentley , 644 F.2d 852, 855 (10th Cir. 1981) (“Immunity whi ch derives from judicial immunity may extend to persons other than a judge where performance of judicial acts or activity as an official aide of th e judge is involved.”). The circuits are in general agreement that a clerk’s issuance of a warrant involves a quasi-- judicial act and, therefore, carries with it the pr otections of absolute immunity.-10-

See, e.g. , Kincaid v. Vail , 969 F.2d 594, 601 (7th Cir. 1992); Foster v. Wals h , 864 F.2d 416, 417-18 (6th Cir. 1988); Scott v. Dixon , 720 F.2d 1542, 1546 (11th Cir. 1983). Unless she acted in the absence of all jurisdiction , Serassio is immune from damage liability for issuing the bench warrant. Se e Williams v. Wood , 612 F.2d 982, 985 (5th Cir. 1980) (“No immunity extends to c lerks of court acting outside the scope of their jurisdiction, as is true for jud ges.”). Serassio is authorized by state law to issue a bench warrant when a defendantfails to appear on a misdemeanor citation. See Utah Code Jud. Admin. Rule 4-701(2)(A). Therefore , she is immune from damages even if she did not follow prop er procedures concerning the contents of the bench warrant and the use of th e judge’s signature stamp. Serassio also is entitled to immunity for her actio ns in filing the FTA information. Initiating a prosecution is “intimate ly associated with the judicial phase of the criminal process,” and, therefore, is a “function[] to which the reasons for absolute immunity apply with full force .” Imbler v. Pachtman , 424 U.S. 409, 430 (1976). Utah law specifically au thorizes a justice court clerk, rather than a prosecutor, to file an FTA informatio n, and thus institute judicial proceedings against an arrestee who fails to appearon a misdemeanor citation.
See Utah Code Jud. Admin. Rule 4-701(2)(A). Therefore , even though Serassio-11-

may not have followed the proper procedures in stamping the information with the judge’s signature, she is immune from damages liabi lity for her actions.
AFFIRMED. Entered for the Court James K. Logan Circuit Judge