Warren E. Burger: We'll hear arguments next in Dennis v. Sparks and Lynd. Mr. Edmonds, you may proceed whenever you are ready.
Finley L. Edmonds: Mr. Chief Justice, and may it please the Court: The points that petitioner feels are presented to the Court on this petition for certiorari have to do with the question of whether a state court judge acting within the scope of his jurisdiction is a person as that term or word is used in Section 1983. Petitioner submits that the resolution of that question depends in great part upon the scope of judicial immunity as that concept is applied by this Court.
William H. Rehnquist: Isn't immunity an affirmative defense?
Finley L. Edmonds: Judicial immunity, Your Honor, Petitioner submits, is more than an affirmative defense.
Warren E. Burger: You mean it has a little bit of jurisdiction on it?
Finley L. Edmonds: Your Honor, in examining the development of judicial immunity, it seems that an argument can be made that it's in the rationale behind judicial immunity, the public interest to be served by judicial immunity. That to put it in terms that is judicial immunity an affirmative defense raises the question what if the judge who sued doesn't raise the offense?
Warren E. Burger: Well, are you suggesting that it's comparable to, analogous to the posture of a United States Senator under the Speech or Debate Clause, that he may not be questioned in any other place?
Finley L. Edmonds: I'm saying, yes, that it's analogous to legislative immunity, congressional immunity under the Speech or Debate Clause if the judge, if the purpose for questioning the judge or for suing the judge is because of his act or conduct while a judge, acting within his jurisdiction.
Warren E. Burger: But we don't have a speech or debate clause typed for judges, do we?
Finley L. Edmonds: No, Your Honor.
Warren E. Burger: That's a judicially constructive concept.
Finley L. Edmonds: It's a common law of construction; yes, Your Honor. And if the scope of judicial immunity, just going back to Bradley v. Fisher and throw out the cases that have been cited by this Court: Pierson, Embler, more recently in the Consumer Union case. The analysis of legislative immunity, the analysis of judicial immunity, that if the public interest or rationale behind this immunity is to free the judge from the intimidation, harassment, et cetera, as the Court has many times discussed in these cases. If that is the rationale, then rhetorically does not the rationale require that judicial immunity apply regardless of whether the judge raises it as a defense? So, in answer to your question, Judge Rehnquist, I would say that it's more than an affirmative defense, as would be a qualified immunity whereon a state officer or a federal officer is asserting that he is immune because of his good faith carrying out of discretionary functions.
William H. Rehnquist: So what if the judge is served with a complaint in an action such as this and simply lets the time for answer go by and a default judgment is taken against him? Would you say that that judgment is no good?
Finley L. Edmonds: Or he answers... yes.
Byron R. White: Or he answers and litigates the case without ever raising the claim that judgment is against him. Is that judgment good?
Finley L. Edmonds: Petitioner's position is that judicial immunity, that the public interest behind judicial immunity is that it's not in the judge's discretion to raise the question of judicial immunity. It's the adjudicating court's function to apply, it's a matter of jurisdiction.
William H. Rehnquist: So, even if he said I want to answer this on the merits and clear my name of these allegations in the complaint he would not be permitted to do so under your theory?
Finley L. Edmonds: Your Honor, my response to that is does that not raise the question, or beg the issue, about the underlying rationale for the immunity? Is it up to the judge to decide whether he wants to respond or not, or is it in the public interest that he not respond? Because how does that place a judge--
Warren E. Burger: As you say, on your submission, it's a matter almost of jurisdiction.
Finley L. Edmonds: --Yes, Your Honor. Because if one judge agrees that, okay, I will participate in this lawsuit, I won't raise my affirmative defense of judicial immunity, and I'll go in there and we'll straighten this thing out, well, what about all the other judges? What about the public interest behind judicial immunity?
Thurgood Marshall: What could you do about it? What could you or anybody else do about it?
Finley L. Edmonds: What can my client do about it?
Thurgood Marshall: What could you or anybody else do if a judgment was obtained against Judge Joe Bloke who never told anybody that he was a judge and never raised a question? Now, what could anybody do about it? Nothing.
Finley L. Edmonds: Well, Your Honor, they know he was a judge.
Thurgood Marshall: But he says that it's not jurisdictional.
Finley L. Edmonds: If he came to me and was sued for conduct while not carrying out his judicial function, I would agree. But in case he's being sued because of carrying out his judicial function, we know he's a judge.
Thurgood Marshall: Then it's not jurisdictional... In fact, if you'd sue him as John Jones and he happens to be a judge, what would happen?
Finley L. Edmonds: Well, why am I suing him? For carrying out his judicial function or for--
Thurgood Marshall: For just what he did here, and you didn't mention that he was a judge?
Finley L. Edmonds: --I would say that the public interest requires that the reviewing court apply judicial immunity and say that this judge is immune because he was acting as a judge when he did what he is alleged to have done.
Warren E. Burger: Let's assume... can't we start with an assumption that this judge is immune and go on to your client who is not a judge, is he?
Finley L. Edmonds: That's right, Your Honor. He's not a judge. And how can my client raise the--
Warren E. Burger: --vicarious exemption, if it is an exemption?
Finley L. Edmonds: --Right. My client's position is that like the Barra v. Jackson case that involved the defendant who had sold property in violation of a restrictive covenant to folks of another race, the question was, could that defendant raise the constitutionality of that restrictive covenant as it had applied to the other race, assuming the defendant sold? And this Court held, yes. In Griswold v. Connecticut, there the physician had been convicted of the crime of an accessory and an accomplice to third parties having to do with the state's ban on contraceptives. And this Court held that the physician had standing to raise the constitutionality argument that was more directly applicable to the third party... he's the person for whom the physician had treated.
Potter Stewart: That's a matter of... those cases really turn on standing--
Finley L. Edmonds: Yes, Your Honor.
Potter Stewart: --and as one person has the interest through the rights of jus tertii, the rights of a third person. Is that what this is, a standing case, kind of? Not exactly.
Finley L. Edmonds: Well, no, no. I mention those because I think they're applicable. I was thinking, I guess, of the question raised by the amicus, one of the amicus in the case, questioning our ability to raise the judge's immunity because we're not a judge. We were sued by the plaintiffs for participating in a state judicial function and... well, our first point about the definition of person, the scope of judicial immunity, this to me logically turns in, goes into the question about was it congressional intent back in 1866 and again in 1871 and with subsequent amendments to the various civil rights acts, specifically this Act, 1983. Is it congressional intent to superimpose federal court oversight or federal court jurisdiction over the litigation among parties of private rights in the state court authorities? Here we don't have a case of Mr. Dennis and the other parties mugging the respondent on a highway. What we've got here is, the other parties are not before the Court right now having gone to state court, having filed a suit in state court, a temporary injunction having been entered by Judge Carrillo, and that temporary injunction being dissolved in the ordinary course of events in the state proceedings by the Court of Appeals.
Warren E. Burger: What would be your analysis if the United States... a member of the United States Congress, House or Senate, was involved in a conspiracy with a private citizen and then the private citizen is a defendant, but not the Member of Congress? Do you think the Speech or Debate Clause could carry over to the coconspirator who was not protected by the Speech or Debate Clause directly?
Finley L. Edmonds: My answer is yes, Your Honor.
Warren E. Burger: I must say that here because if it isn't true there it couldn't possibly be true here, could it be?
Finley L. Edmonds: I tend to agree with Your Honor.
Thurgood Marshall: Something like pendent immunity. Vicarious immunity is--
Finley L. Edmonds: I am very reluctant to get into the area of using the terms of immunity, I suppose. I can't say that Mr. Dennis had an immunity at common law. I can't say that he had any of the immunities that this Court has held were not abrogated by Congress when they passed the civil rights statute we're dealing with. However, I am saying that the public interest, the rationale, the logic behind judicial immunity requires this result. And if we want to call it "vicarious" or "pendent" or "derivative", so be it.
Speaker: --Why does the rationale require it?
Finley L. Edmonds: The rationale requires it, as pointed out by the dissent in the en banc decision before the 5th Circuit. And it's pointed out by others. It requires it because--
William H. Rehnquist: The judge is home free?
Finley L. Edmonds: --The judge is home free, but to allow... he's home free, from a liability standpoint, but I guess the answer has to be almost rhetorical. To allow prosecution of a claim against a private citizen conspirator under... how is the private citizen even liable under 1983? It's because of conspiracy with a judge under the Adickes v. Kress. So we've got to have a conspiracy with the judge. So the judge is involved, the judge's interest is involved because of the litigation against a private person. The case is necessarily going to involve whether there was a conspiracy with this judge, even though he's immune, even though he can't be made to participate, even though he can't be made to testify.
Byron R. White: Who said he couldn't testify? Why can't he be made to testify or is that what you said? Where... what case holds that?
Finley L. Edmonds: There is no case that holds that, Your Honor. It's petitioner's construction that the concept of judicial immunity requires that the judge not participate, just as this Court recently held--
Byron R. White: Well, what about... no, no, a judge isn't immune from criminal indictment on grounds of official immunity.
Finley L. Edmonds: --That's quite true, Your Honor, but this is a civil case.
Warren E. Burger: Incidentally, has he been prosecuted? Yes, this judge is in jail, isn't he?
Finley L. Edmonds: But not for this, Your Honor.
Warren E. Burger: Has Manges been prosecuted?
Finley L. Edmonds: To my knowledge he has not been prosecuted in a state district court for misconduct. He was removed from his office because of conduct including misconduct. Again--
Warren E. Burger: But he hasn't been prosecuted criminally? Do you know why not?
Finley L. Edmonds: --No, I don't, Your Honor.
Byron R. White: You're suggesting this judge couldn't be called as a witness against his coconspirators?
Finley L. Edmonds: Well, I'm suggesting that if we say--
Byron R. White: He might not even... all right, go ahead.
Finley L. Edmonds: --Well, if we say that public interest requires that judges not be subjected to a pleading contest that can be brought about by any dissatisfied litigant in any state court action, that... to say that, okay, immunity means that you can't... that he's entitled to dismissal as a party and immunity means that you can't get--
Byron R. White: Well then, immunity for these people isn't required, then, to implement any of the policies of giving judges immunity. They can't be bothered for anything. If they can't be called as witnesses, then why do you need to give their coconspirators immunity just to protect the judge, if the judge is already protected by... from being called as a witness or dragged through cases? I thought your argument would be that if you didn't give these people immunity the judge could be called as a witness, and would be involved in this case... if you take him away from his judicial duties and have his motives questioned? I thought so too. It brought to my mind the controversy between Jefferson and Burr, when... and when John Marshall was sitting in the treason trial and tried to get Jefferson to appear as a witness. And I think they settled it by Jefferson simply furnishing papers, and Jefferson's response was if the President could be subpoenaed from one court to another, he can be prevented from doing his presidential business. But if you say he can't... that the judge can't even be subpoenaed to testify, it seems to me there's no reason in the policy that Justice White has mentioned, to say that the coconspirators share his immunity. Between the Burr case and one more recent case, the Courts have held that even the President must respond and be a witness if necessary.
Finley L. Edmonds: --Again, that was a criminal action though, was it not, Your Honor?
Warren E. Burger: It happened to be. But if there were several actions that followed before she arrived, it would seem clear that they would have to come as witnesses.
Finley L. Edmonds: Well, Petitioner is arguing that there is a distinction between the scope of judicial immunity in a civil action, and the scope in a criminal action.
Warren E. Burger: Well--
Finley L. Edmonds: I think there are other state or public interests that are floating in that scheme of things; the rationale behind the protections of the system of prosecutors and grand juries and indictments and the state itself, but when you get to the civil action area under Section 1983, you're talking about enforcement, about albeit harassment of judges by private persons, the same constitutional or statutory safeguards don't apply. But I do agree there is a conflict there that I think is resolved by differing public policy interests.
John Paul Stevens: --Mr. Edmonds, would there be a state law civil remedy against your clients for the alleged bribery attempts?
Finley L. Edmonds: Yes, Your Honor.
John Paul Stevens: And no immunity claim would defeat that action? You're asking the federal court to grant a broader immunity than the state courts of Texas grant, is that right?
Finley L. Edmonds: There would be judicial immunity, with respect to a civil action, for the bribery. With respect to a criminal prosecution for the bribery, there would not be.
John Paul Stevens: No, I'm asking about a damage remedy brought by the Plaintiffs in this case against the non-judicial Defendants in this case, making the same allegations that are made here.
Finley L. Edmonds: There is a damage remedy, and that remedy is being pursued by the Respondent in the form of a wrongful injunction suit. Under Texas law, the dissolution of an injunction creates the cause of action for the wrongful injunction. But in that case, the motives of the judge, in entering the injunction, is not a critical or a turning factor. But here, we're talking about how do you get to the private under 1983? You get to him only because of a conspiracy with the state actor; in this case it's a judge.
William H. Rehnquist: Is the judge liable under Texas law, under the wrongful injunction action?
Finley L. Edmonds: No. No, only the... Mr. Manges, who was the party that got the injunction, and my client's liability would be limited solely to the bond that he signed.
John Paul Stevens: So that apart from that action on the bond, is there a tort action in Texas available... in a matter of common law for bribing a judge... to harm you in some way?
Finley L. Edmonds: I don't know the answer to that question, Your Honor. If I may, I'd like to reserve the balance of my time for rebuttal, if that please the Court.
Warren E. Burger: Very well, Mr. Smith.
Garland F. Smith: Mr. Chief Justice, may it please the Court, the question, I think, is pretty before the Court. The question is whether or not the private individuals who do conspire with a state judge and do cause the state judge to enter the bench and enter unlawful orders that result in damage to the claim... do they automatically derive immunity for their wrongdoing simply because the judge is, himself, immune? Now, this case, of course, is before Your Honors as... on the pleadings, on a motion to dismiss, and the pleadings, of course, have to be taken as true. But we would point out to the Court that there's nothing in these pleadings, in this case, that has not already been adjudicated in the state of Texas. The bribery was adjudicated, on a motion to disqualify Judge Carrillo. The comments of the judge, after both parties had rested is included and attached to our pleadings, which is in the Appendix. And the Order that the judge entered, holding that the judge was disqualified because the transactions between the judge and Mr. Manges amounted to a disqualifying situation... that's been decided. Now, Judge Carrillo has, subsequently, been impeached by the Texas legislature. The House included the transactions involved in the disqualification matter as one of the articles of impeachment... there were 12 articles, but this is only one of them. He was convicted by the Texas Senate and removed from office for corruption, various items. He was later tried and convicted in federal court for tax fraud. Thereafter, he was tried and convicted in the Texas state courts for theft. Now we are not here on a jailhouse-type pleading that's accusing an honorable judge and trying to besmirch the character of an honorable judge who simply made an error in one of his rulings.
William H. Rehnquist: Of course, one of the reasons for the immunity doctrine is that it's awfully hard to separate out, you know, before you go to trial and appeal, and so forth, the honorable judge who made a mistake in his ruling and the corrupt judge who's been jailed for theft.
Garland F. Smith: I think Learned Hand addressed that question in one of his decisions. He said that if you could determine that, then it would be monstrous not to allow relief. Now, in this case, that determination has been made; we're not before you--
William H. Rehnquist: But it wasn't made at the time you filed your 1983 action, was it?
Garland F. Smith: --Oh yes. It was made then. Now, at the time the wrongful injunction was issued, the attorneys who represented the Respondents in that case... which was not our firm... the attorneys who represented the Respondents in that case did not know of the bribery. The bribery itself was not determined until May the 20th, 1973. But the judge who made the determination said that because of the bribery, the judge was disqualified as of February 1, 1971. Now, the wrongful injunction came after that date, so the wrongful injunction came after the judge had accepted the bribe and after he was disqualified because of it.
Byron R. White: But this wasn't the rationale of the Court of Appeals?
Garland F. Smith: How's that?
Byron R. White: This isn't the rationale of the Court of Appeals, the en banc decision of the Court of Appeals?
Garland F. Smith: Oh, no sir.
Byron R. White: Now, you're going to defend that, aren't you?
Garland F. Smith: Oh yes, I'm going to address that. The rationale of the Court of Appeals--
Speaker: I take it you would not agree--
Garland F. Smith: --I beg your pardon?
Warren E. Burger: --I take it you would not agree with your friend that a coconspirator with a member of Congress would have the cloak of the speech or debate clause around him?
Garland F. Smith: I don't think so, Your Honor. I think... I don't think that is exactly parallel. The Congressional immunity is based on a specific constitutional provision. The judicial immunity is based on common law. And the... the exception being--
Warren E. Burger: You could concede the former arguendo, and still--
Garland F. Smith: --Yes, I would say--
Warren E. Burger: --maintain your position?
Garland F. Smith: --I would say it's irrelevant to our position. The Civil Rights Act, in dealing with this matter, they did not specifically make an exception. But in approaching our problem, we have to start with the Civil Rights Act. And that of course does not make an exception even of the judge. But the Court, in construing that statute, concluded that the Congress did not intend to abolish the common law immunities that existed at that time, and the immunities did exist for judges. But no immunity existed for those who conspire with judges, under common law. So therefore, the rationale that supports the immunity for the judges does not in any way give any immunity whatever--
Byron R. White: Well, if it's that clear, it's rather strange that most of the Courts of Appeals have decided against you.
Garland F. Smith: --Your Honor, that was the case when this was first briefed. But it has been three circuits that have changes their minds and the majority of the Courts of Appeals are now on our side.
Byron R. White: Well, what... the Seventh has changed its mind?
Garland F. Smith: The Seventh has changed its mind.
Byron R. White: Are you sure? Is that from that en banc--
Garland F. Smith: I construe Lucas v. Vanderwater as--
Byron R. White: --Was that the en banc per curiam, or was that the--
Garland F. Smith: --No, that's a subsequent case.
Byron R. White: --That's the later one, all right.
Garland F. Smith: Okay, this was decided in April of--
Byron R. White: All right, what other one has changed its mind?
Garland F. Smith: --Okay. I would say that the Tenth Circuit, in Norton v. Ledell.
Byron R. White: Well that isn't a... that isn't a change of mind--
Garland F. Smith: Well, you're correct, it was not a change of mind, but it is... at issue--
Byron R. White: --All right.
Garland F. Smith: --It's the addition of another circuit.
Byron R. White: All right, tell me another one that's changed its mind? The Fifth has, of course, in this case.
Garland F. Smith: The Fifth has, specifically. And you add them all up, I would say the circuits that now support our position are the Seventh... now, I construed that en banc decision. You have to... you have to analyze about seven different specific decisions, but when you tabulate the vote, I think they have come down pretty hard--
Byron R. White: Well, the Ninth is still against you.
Garland F. Smith: --I suppose I know they are, but--
Byron R. White: And the Third is still against you.
Garland F. Smith: --That's correct.
Byron R. White: The Fourth is still against you.
Garland F. Smith: Correct.
Byron R. White: The Sixth is still against you.
Garland F. Smith: That's right. But there you end.
Byron R. White: All right, well, it's about even then, isn't it? You want to straighten them out, is that it, counsel?
Garland F. Smith: I don't think--
Byron R. White: My only point was that there's been an awful lot of Courts of Appeals that have felt that the policies of judicial immunity required immunity for private parties.
Garland F. Smith: --Well those cases, I say, were not really thought through very much; they weren't presented very well, they were mostly pro se cases, and the court took an easy way out to get rid of frivolous cases.
William H. Rehnquist: Well, what happened to the... in this... in this case, Mr. Smith, before any of the Texas proceedings had taken place, your client filed his 1983 action and the judge was asked to give a deposition and said he had cases set for all week and all the next week, and your client said well, I planned that the deposition is going to last at least two weeks so you had better adjourn that calendar. And the federal judge said you're going to have to participate in these depositions and if it takes two weeks, it takes two weeks.
Garland F. Smith: Well, Your Honor, Number one, judges are amenable to subpoena and to testimony in Texas, and we haven't had any problem with it in Texas. The rules of procedure give ample opportunity for any witness to be protected from harassment, and that would certainly be doubly true with respect to judges. Now, that's number one. And number two is it doesn't apply to this case because we don't have to have Judge Carrillo's testimony in this case.
William H. Rehnquist: But certainly the Fifth Circuit en banc opinion would include many cases in which you did need the testimony of the judge?
Garland F. Smith: Yes, I would say that they discussed that question and they said the inconvenience to the judges would be relatively insignificant, when you compare the disadvantages of not having this ruse... of allowing derivative immunity. So, that's the way they disposed of it.
Warren E. Burger: Are there not many situations in which a sitting judge might be subpoenaed and required to spend time in Court as a witness, either to an automobile accident or to a rule that he had drawn when he was in private practice, or even when he was on the bench ruling?
Garland F. Smith: The fact that he's a judge doesn't mean that he's not a citizen of the United States, and has an obligation to his citizenship. If he has knowledge of crime or anything else that's been committed that... and he's the only person that can testify, sure he ought to testify.
Warren E. Burger: His immunity is a narrow immunity relating to--
Garland F. Smith: That's right.
Warren E. Burger: --his judicial functions.
Garland F. Smith: It's just designed to protect the integrity of the Court. Now when you get down to what the immunity really is after, the end is integrity. Now independence is only the means... now, it's an important means; if the judge is not independent he possibly cannot be entirely fair and impartial and free in his decisions. But if he uses his independence as a means of aiding corruption as happened in this case, then to say that you exalt the independence of the judge over and above and make it more important than integrity, then you are reversing the whole application. Now--
Potter Stewart: Well that argument would remind that concept of judicial immunity.
Garland F. Smith: --That... it would, yes, but the doctrine of judicial immunity is the law. But if we are free to proceed against those who conspire with the judge and those who corrupted him, they are not completely left out in the cold. Now, the... I don't think anyone argues that the doctrine of judicial immunity is justified on any basis except to preserve an independent judiciary and the integrity of the Courts against fallacious and frivolous charges. And if we are allowed to proceed against those who corrupted the judge, then we're still not completely left out in the cold.
Potter Stewart: Well your lawsuit, you say, is not frivolous and I assume that it isn't--
Garland F. Smith: That's right.
Potter Stewart: --but this rule of law through which you contend, will it allow frivolous lawsuits?
Garland F. Smith: Your Honor, I think the answer to that is, there is no way you can keep frivolous lawsuits from being filed in any field.
Potter Stewart: Well one way is to decide that the Court of Appeals was mistaken in this case.
Garland F. Smith: Now I think the Seventh Circuit, in the McFarland case, probably has laid the groundwork for the proper rule to take care of that. You're going to have frivolous lawsuits unless you have rules of procedure that can take care of them. Now that question, really, is not reached in this case. I think you're going to have to have some stringent rules on a case of this kind, and the Seventh Circuit has said so. And we have pled our case, specifically, and in great particularity, so that it would satisfy the stringent requirements that are made by the Seventh Circuit and we don't argue with that. We think they ought to have those stringent requirements. I don't think anybody ought to just be able to sit down and think up a bunch of charges to make against a judge, and file suit. I think that--
Potter Stewart: And just so long as he includes a private citizen as a coconspirator, he can sue the private citizen--
Garland F. Smith: --You can sue the private citizen and he's the one... you should be able to get most of your testimony from him without having to go to the judge, but if there is something that the judge feels like he's got an interest in it, he can always--
Potter Stewart: --And no matter how frivolous, any Plaintiff can do it.
Garland F. Smith: --I didn't say that.
Potter Stewart: Well, what are these rules set up by the Seventh Circuit? How do you get--
Garland F. Smith: Well the Seventh Circuit says--
Potter Stewart: --How do you stop somebody from filing a complaint?
Garland F. Smith: --Well of course, you can't do that.
Potter Stewart: No.
Garland F. Smith: You can't stop them from filing a complaint--
Speaker: Of course you can't.
Garland F. Smith: --but you can stop them from carrying it on to the point that it becomes a nuisance. The trial judge, I think, can determine--
Potter Stewart: By dealing with the merits of the case.
Garland F. Smith: --By dealing with the... well--
Potter Stewart: And that's exactly what judicial immunity is supposed to prevent at the outset, nip in the bud; you don't get to the merits of the case because the Defendant is immune, cannot be sued.
Garland F. Smith: --Well that would be right, that would be right if it was suit against the judge.
Speaker: Right.
Garland F. Smith: But this is not a suit against the judge, this is a suit against the people that bribed him. So you don't have that problem, it's just not--
Potter Stewart: Well the problem is still there, I suggest.
Garland F. Smith: --Well, that issue was faced in the Fifth Circuit, and the requirement of specific pleadings, of course, puts the trial judge in a position to dismiss the case if it isn't pled with particularity, and mannered... or where it overcomes the idea that it is a frivolous lawsuit. That's really not too hard for the trial judge to do.
Potter Stewart: But a malicious person can plead with particularity. Absolutely so.
Garland F. Smith: Well, of course, if it is a malicious dealing, the Defendant has some action against the parties that filed malicious litigation.
William H. Rehnquist: Well but that hasn't been the way... 1983 has worked in the past, is that you get a judgment against the judge and then he, in turn, turns around and sues the person who sues him.
Garland F. Smith: Well of course, the truth of the matter is that the 1983 didn't really function until about the last twenty years, and it's--
William H. Rehnquist: It has made up for lost time, though.
Garland F. Smith: --Well, very likely it has... the dam broke when they tried the first case, and it's to be expected when anything is held back that long, there's going to be a lot of litigation. But they are being weeded out, if... if you... I don't think it's that serious. But when you are dealing with a civil case you are in an entirely different situation than you are with the fellow in the penitentiary that doesn't have anything to do but sit around there and work around in the library, and figure out ways he can try to bring a case before the court. You're dealing with people that have been suing in the state court; they've had lawyers involved with it, and they are not... no lawyer is going to get strung out with a judge on a case unless he has valid grounds. I've been practicing for 43 years--
Speaker: Well--
Garland F. Smith: --and this is the first time I've ever had a case--
Byron R. White: --you haven't been watching the flow of cases in Appellate courts, either.
Garland F. Smith: --I realize that there has been a flow of frivolous cases, and you have had to deal with them. But what I--
Byron R. White: With lawyers, and all with lawyers.
Garland F. Smith: --What I am saying is, as long as the Courts are going to consider the frivolous cases, I don't think they ought to throw my meritorious case out with the bad.
Potter Stewart: Well that's the... that's what the doctrine of judicial immunity itself does.
Garland F. Smith: It does if we sue the judge, we're not suing the judge.
Potter Stewart: Yes. But your argument would undermine the doctrine of judicial immunity itself.
Garland F. Smith: No, we... now, let me answer that question. In the first place, they say that the judge is not a person so far as 1983 is concerned. Well of course that's a fiction, he is a person. He may be an immune person but he's a person. And the fact that he is immune does not have anything to do with his capacity to conspire; he has full capacity to conspire, he has full capacity to commit any criminal act that any individual has. And so he's... the idea that he's not a person is just, it's just a fiction, not even valid legal fiction. But now, when you get past that, he has conspired and by virtue of his conspiracy, our clients have been denied their right to try their case before a fair and impartial judge because the case was tried before a bribed judge. Now that's not what the constitution guarantees. We're not here arguing with the idea of an independent judiciary... we're here because we didn't get a fair and impartial judge, to begin with.
Potter Stewart: But the rule for which you contend could not be confined to Duval County, Texas and would enable any person convicted, for example, of a criminal offense to bring a 1983 lawsuit against the complaining witness in his case and on the claim that the complaining witness conspired with the judge to do him dirt.
Garland F. Smith: The answer to that, Your Honor, is simple. Corruption isn't restricted to Duval County, Texas. I read in the paper the other day that some judge up in Ohio I believe, had been removed from office. The corruption they recited in that case looked like it was just as bad as Duval County. So we've got to be able to deal with it when it happens where it happens. And we cannot use the doctrine of judicial immunity and derivative immunity to provide a cover-up for... judicial corruption... if there's judicial corruption that is one place, where--
Potter Stewart: Well, where you have judicial corruption on the part of the judge alone, without... who's not in cahoots with anybody... judicial immunity does provide a cover-up, to use your words.
Garland F. Smith: --Frankly, I don't see any way around that. If the judge is just corrupt by himself.
Byron R. White: Well, there is no way around that. By the way, is there a judicial immunity under Texas law?
Garland F. Smith: Yes sir.
Byron R. White: For damage... is it absolute immunity, like, similar to what has been announced in 1983 suits?
Garland F. Smith: My opinion is that there hasn't been enough case law on it to answer the question. I think it's--
Byron R. White: But to the extent there is, the judges are immune?
Garland F. Smith: --I would guess that the Texas courts will come down pretty much the same way you have here.
Byron R. White: Well what about, you haven't had any third-party cases then?
Garland F. Smith: Oh no, no. No derivative immunity at all, under Texas law, that I know of. I'm sure they haven't had any. And but then, you get past that and get into derivative immunity, and the cases that have considered it and decided against it begin... like this, number one in the plain language of the statute, doesn't provide for derivative immunity because it says any person--
Byron R. White: Or for judicial immunity?
Garland F. Smith: --Or for judicial immunity. But judicial immunity has been provided under the theory that it existed in common law. Now derivative immunity did not exist in common law. So therefore, the cases that have held that the judge--
Byron R. White: You mean therefore there are some cases that held that it didn't, or just that there weren't any cases?
Garland F. Smith: --That... you mean there was a common law question? My research has failed to disclose a single case--
Byron R. White: All right, so that you really... so that there were cases that said it didn't exist?
Garland F. Smith: --I have had numerous Law Review articles and I have seen the quotation in cases and in briefs and so forth, that there was no derivative immunity at common law. Now, I can't cite you a case that says... that specifically says that... that was a British case, as of the date of... 1983. Now the next thing is, that any such immunity that is awarded to the private individuals who conspire with the judge, constitutes an invitation to corruption. That's just engraved into the idea; that if you are going to allow a man to become immune from liability if he can bribe a judge and make him party to the scheme, he automatically gets immune for his act. To pose that question is almost to answer it, I think.
William H. Rehnquist: Couldn't you say the same about judicial immunity, that it almost invites a judge to be corrupt?
Garland F. Smith: Right, well, of course, I think that... I think that is there, and our protection... and the only protection we have is, that I think we have been very fortunate in the quality of lawyers who have taken the bench as a career. There have been exceptions of course and we have been embarrassed by them, the profession has and the judiciary has--
Byron R. White: But official immunity doesn't insulate a judge from either criminal liability nor from disbarment, or from investigation by... or removal?
Garland F. Smith: --It doesn't change his--
Potter Stewart: Or impeachment, his not being re-elected.
Garland F. Smith: --It doesn't change his character in any way.
William J. Brennan, Jr.: Mr. Smith, what's the rationale of the cases that have been against your position? And I've said that there was a derivative--
Garland F. Smith: Well the rationale there is substantially what Mr. Edmonds said; that the fact that... we'll take, simplify it, we've got two parties; the judge and one party, so the one party who bribes the judge finds out that the judge is immune and then you file your conspiracy suit on 1983 and you cannot have a conspiracy with only one party. So with the judge removed, they say, well, he didn't conspire with any state official against whom we could allege a cause of action. Well, of course, that's a fiction, he conspired with him, and as in this case, the injunction was issued as a result of the bribe. It lasted for 31 months, our client abated... he abated because it had the force of state law, it was state action, it had the color of state law, everything that was required was there. And he abated for 31 months. And the trial that he had was before a judge that was bribed. Now, that doesn't meet the standard that the constitution guarantees.
William J. Brennan, Jr.: --I don't think I understand yet what the rationale is of these cases--
Garland F. Smith: Well, the rationale was that because it takes two to conspire, when you remove the state, the immune state officer, you just have one left; therefore, there was no conspiracy because you can't conspire with yourself.
Harry A. Blackmun: --Well isn't there more than that? Isn't it the discouragement of frivolous lawsuits for one thing and secondly, the--
Garland F. Smith: Well, of course, that's involved in it, too--
Harry A. Blackmun: --infringement by federal courts on state judicial processes and the like?
Garland F. Smith: --That's right. That's right.
Harry A. Blackmun: And aren't those expressed in some of the other opinions--
Garland F. Smith: Those matters are expressed, yes sir. And the opinions do... the opinions do sustain it, we point out, that there were pretty frivolous lawsuits, but my position is that we've had those frivolous lawsuits and we haven't had derivative immunity up until now. So I think you can allow a suit under 1983 when it's meritorious, and if you follow the pleadings requirements of the Seventh Circuit, you are going to almost be sure that it's meritorious before it... before you get very far... certainly before you get to the discovery, anyway.
Harry A. Blackmun: --So long as the pleader told the truth?
Garland F. Smith: I beg your pardon?
William H. Rehnquist: So long as the pleader told the truth?
Garland F. Smith: That's right, that's right. But of course,--
John Paul Stevens: It's not even that, is it, Mr. Smith? Even if it's a frivolous lawsuit, if the judge isn't a defendant he can get out... I mean, he doesn't have much of a burden on him, the fact that somebody alleged to have bribed him is being sued,--
Garland F. Smith: --If he could... because he did get loose. But I think any frivolous lawsuit certainly would be disposed of because before they haul a judge off his bench and tie him up for two weeks in testimony, I just can't see a federal district judge allowing that to happen under the rooves that allow protection against that sort of harassment. I think to bring a state judge off his bench, I think the federal judge would have to be convinced that there's some merit to this case. And of course--
Byron R. White: --So there is a brand of... the judge would have a degree of immunity from being hauled into the case?
Garland F. Smith: --Well certainly, certainly. I think any witness has protection against harassment.
Byron R. White: But you don't think the judge would have any more than anybody else?
Garland F. Smith: I think he would have more, because I think--
Byron R. White: He would have more?
Garland F. Smith: --I think he would have more and I think the courts would allow him more. I think they would recognize that the judge, because of his responsibilities to the public, that they just can't haul him off of the bench and tie him up for two weeks. I think the courts would consider--
Byron R. White: Of course, your colleague suggests that he couldn't be called at all.
Garland F. Smith: --Well, that would... that would be his position, and his preference, I'm sure. But the--
John Paul Stevens: What protection, Mr. Smith? You say it would be available even if it was an accident case and the judge was a witness, you say the federal judge isn't going to drag him off the bench and inconvenience him unnecessarily. That's all you're saying there, isn't it?
Garland F. Smith: --Well,--
Warren E. Burger: Using a parallel, Mr. Smith, with many of the suits against cabinet officers, now under the new statutes a cabinet officer may be sued in any federal jurisdiction in the country and--
Garland F. Smith: --Of course.
Warren E. Burger: --including Hawaii and Alaska. And haven't the courts seen to it that their testimony can be taken by deposition and by interrogatory and not drag them away from their cabinet work?
Garland F. Smith: I think those orders of protection could be given in judicial cases. I think the rules are more relaxed with respect to executive officers, those who have what they call a limited immunity. You see, a lot of these public officers have only limited immunity. But the courts still protect them. They don't allow them to just be taken away from their jobs. They can make them take a deposition by written interrogatories or--
Potter Stewart: Of course, a judge doesn't have any immunity at all for conduct that occurs outside of his judicial office. I mean if a judge hits you with his automobile on some afternoon he's not immune at all, any more than any other negligent driver is.
Garland F. Smith: --It's when he gets on the bench and responds. Of course, we don't know where this bribe was given, whether it was out on the ranch or in town, in the cafe, in the coffee shop, or whether it was in chambers.
Potter Stewart: But the act--
Garland F. Smith: But what he did was when he got on the bench and entered the wrongful injunction in response to that.
William H. Rehnquist: --And he clearly had the authority to enter an injunction?
Garland F. Smith: He has authority to enter an injunction. I think the appellate court drew that he abused his discretion They... this particular injunction because it wasn't pled for, number one, and they could have him... the suit asked for an injunction against pollution. They alleged that they were operating the wells in a manner to pollute the surface of the land, but the surface of the land in this case wasn't owned by the Petitioner. But, the injunction could have enjoined pollution, but under Texas law there is no way they could have enjoined him from the lawful operation of producing oil. They could have enjoined him from pollution but not from operating the property, and that's where it was fatally defective and that's why the appellate courts ruled that it was an abuse of discretion that he entered it and of course he entered it without taking any evidence to speak of, it was practically on the pleadings. But those were in the case, that's really not too much involved here, but that's what the background is. But anyway, in the extension of immunity to private parties is simply not necessary to preserving the integrity of the judiciary as I see it. And that's what the courts have observed that have taken our position in the case. Now, the courts that have taken an opposite position has, it's been notice, talked about these frivolous lawsuits. Now, we don't deny that frivolous lawsuits are going to be filed. They're going to be filed whether or not you allow a suit from, you have a meritorious lawsuit. But we think the meritorious should be allowed certainly. If you're going to hear all these frivolous cases. Now, and as observed by the 5th Circuit, there's very little inconvenience to the judge and it's relatively insignificant when you compare it with the benefits to be derived by allowing suits under general immunity. Now, with respect to a state court case, there is a case pending. I think I should explain that since it has been mentioned. When this case was filed, Judge Carrillo was still sitting as judge of the court in Bigelow County. As it was proceeding, we realized we had a more serious question here on this matter of judicial immunity that we thought when we started out. Frankly, my mind at the beginning just couldn't conceive of a holding that a judge could accept a bribe and he not be immune, and certainly that he would confer that immunity to other parties. I didn't grasp that.
Warren E. Burger: Your time has expired now, Mr. Smith.
Garland F. Smith: But that's substantially our case. That case in the state court was mainly protective.
Warren E. Burger: Very well. Do you have anything further, Mr. Edmonds?
Finley L. Edmonds: Yes, Your Honor, if I may take a few minutes to respond to several matters that have been raised. Mr. Smith makes the statement in his argument that his client is left out in the cold. Again, I think this consideration is critical when we talk about the rationale for this statute, the rationale of Congress in implementing this and passing this statute to implement the Fourteenth Amendment. Judge Carrillo did enter this injunction but that injunction in the course of the procedures and the substantive law that exists in the State of Texas, that injunction was set aside by a Texas court. Sparks and Lynd, Mr. Smith's clients, did not have to go to a federal court to get the Texas courts to do right. The Texas courts resolved the question. He was not left out in the cold. Secondly, they were not left out in the cold because they have pending a lawsuit in a Texas court under Texas law for the wrongful injunction.
Potter Stewart: Yes, I know, but they say that's a briar patch down in Duval County, that they can't get justice.
Finley L. Edmonds: Well, part of that lawsuit is pending in Nueces County, Your Honor, as was pointed out in our brief. Part of that lawsuit under the Texas venue procedure, the lawsuit as it applies to my client, Mr. Dennis, is pending in Nueces County.
Potter Stewart: What's that? Corpus Christi?
Finley L. Edmonds: Yes, Your Honor, which I submit is not a hornet's nest in Texas.
Potter Stewart: A briar patch is their place.
Finley L. Edmonds: Or briar patch.
Harry A. Blackmun: Mr. Edmonds, if you had four conspirators here, alleged conspirators, rather than just one and the judge, but one of the four was a state judge, would you still be here?
Finley L. Edmonds: If one of the four was a state judge?
Harry A. Blackmun: Yes.
Finley L. Edmonds: Well, that's--
Harry A. Blackmun: So that his immunity applies to all the other conspirators, not just a single one. Is that your position?
Finley L. Edmonds: --Yes, Your Honor. That's the situation we have here.
Byron R. White: Well, what if the plaintiffs in a lawsuit file the lawsuit against your clients and they claim the immunity and your clients come in and claim immunity, based on the immunity of a state judge? And the answer of the plaintiffs is, we stipulate that we'll never bother that judge, we'll never call him as a witness, he'll never be a witness against any of you, we'll not bother him at all. But we'd have to admit that in the course of our lawsuit we're going to try to prove that he was corrupt. Now, would you think your claim of immunity would be satisfied by, on any stipulation like that?
Finley L. Edmonds: The public interest behind judicial immunity would definitely not be satisfied.
Byron R. White: Why? Why not?
Finley L. Edmonds: Your statement, that in the course of these proceedings we're going to prove that there was a conspiracy for this judge to do wrong. That's the very essence of judicial immunity, the very essence of it. And my man is raising that immunity, not because he's a judge but because of this Court's decision in Pierson v. Ray that judicial immunity is applicable in 1983 despite the fact that there's nothing said in that statute about judicial immunity or any immunity.
William H. Rehnquist: Well, do you think that the public interest rationale is meant to kind of put up a facade to the public that all judges are much more honest than normal people?
Finley L. Edmonds: To use Mr. Smith's term, I guess that would be a fiction that we'd be dealing with, Your Honor. I don't think that the purpose of immunity is to create a fiction. I think the purpose of this immunity that goes back to the King's Bench, hundreds of years ago, is that there was presumption that it does exist. And if we wanted to find that what if we get into a situation where the majority of judges are corrupt?
William H. Rehnquist: Well, the public interest connection--
Finley L. Edmonds: Perhaps public interest will be changed then.
Byron R. White: --The public interest rationale certainly doesn't prevent the filing of a complaint, which may get great publicity in the papers as to what the claims are about what some judge did. And despite any stipulation or the immunity of the judge from being called as a witness, there it is, and if the case goes forward against him and there's a judgment against the plaintiffs... namely that the... that nobody did anything wrong, why, the judge is going to be vindicated, I suppose.
Finley L. Edmonds: Yes.
Byron R. White: And if the finding is that the conspirators really did conspire with the judge, it doesn't add a whole... so what's the--
Finley L. Edmonds: Just the mere fact of filing, the ability to file a lawsuit.
Byron R. White: --Well... oh, I know, but the immunity doesn't protect their buddy from that.
Finley L. Edmonds: That's right, that's right. And I have to submit to the court that this isn't as easy a question to answer as Mr. Smith's events. We're not trying to say that there's a black and white side to this. It's a matter of balancing.
Warren E. Burger: Even with the explicit, very explicit immunity and protection of the Speech or Debate Clause, a member of Congress can be sued under 1983 or in many other ways, and that doesn't stop that exposure.
Finley L. Edmonds: No, but he's immune if the conduct for which he was sued falls under the Speech or Debate Clause.
Warren E. Burger: Yes but he isn't immune from having someone file a complaint with a lot of scurrilous allegations.
Finley L. Edmonds: Yes, Your Honor, that's right. If we're not talking here about, should the scope of judicial immunity be broad enough to somehow screen out lawsuits as they're being filed as the Clerk's house, I guess the answer there is to respond upon, depend upon responsible journalism that they don't blow a lawsuit like that out of proportion when it's filed, before it's adjudicated. Under the respondent's view of 1983 and the ability to pursue conspirators, these private citizens, I submit that, to follow respondent's view of the case, that the respondent could have gone to federal court immediately at the time that Judge Carrillo entered the temporary injunction even before The Beaumont Court of Appeals in Texas had a chance to throw it out. Mr. Smith is fortunate in that he can present to the Court such a bad set of facts.
Byron R. White: Well, he would have very big trouble doing that in the face of the Anti-injunction Act and a few other things.
Finley L. Edmonds: Under 1983 if we have a conspiracy and if the immunity of that judge does not in effect shield the judicial proceeding--
Byron R. White: Well, you aren't going to be, you wouldn't be enjoining the judge or the judicial proceeding.
Finley L. Edmonds: --No. I'm saying that he could sue for damages.
Byron R. White: Well, you mean he could... well, all right. He could probably enjoin the conspirators from continuing to bribe the judge.
Finley L. Edmonds: Well, Your Honor, that is bribery. That's Mr. Smith's term.
Thurgood Marshall: That would be enjoining a crime. You can't enjoin a crime.
Finley L. Edmonds: Well, maybe I didn't state myself clearly. What I was stating, that under the respondent's view of the case, that that just after the trial court stage that he would be would entitled under Section 1983 to file a suit for damages in federal court, despite what might happen in state court.
Thurgood Marshall: What you say is that in any court action that has more than one defendant and one of the defendants is an immune judge, all of the others are equally immune. Isn't that what you say?
Finley L. Edmonds: If it's a suit under a... a civil action suit--
Thurgood Marshall: If it's a suit, 1983 or anything else--
Finley L. Edmonds: --And if it's based upon the Judge's conduct as a judge.
Thurgood Marshall: --If it has more than person involved and one of the people is a judge, all of the others... one, two, or 37... are all immune.
Finley L. Edmonds: Yes, Your Honor. And that the reason--
Thurgood Marshall: You notice I didn't ask you for any support.
Finley L. Edmonds: --Yes, Your Honor. As far as the fiction concerning whether a judge, given this Court's decisions, that judicial immunity is applicable in 1983 cases, to say that, trying to say that a judge is or isn't a person is fiction, that... one could almost say that judicial immunity itself is a fiction when it comes to applying that to 1983. I will submit that it was not the Congress's intent to litigate in federal court all states' courts' civil proceedings.
Warren E. Burger: Thank you, gentlemen, the case is submitted.