23

While discussing Hans Reiser's subsequent civil lawsuit to his murder conviction, Wikipedia states:

"Judges ... are immune to lawsuits regarding their official conduct."

In the United States, is that true? Surely, if a judge colludes, conspires, or otherwise rigs a trial's impartiality while performing his official duty he isn't immune from prosecution for such crime.

  • I believe the term ultra vires may be applicable and could produce relevant search results. – Ron Royston Dec 14 '16 at 3:39
36

It is true that judges in the US have absolute immunity from any lawsuit for damages arising from their performance of judicial functions. This applies even if those actions were corrupt, malicious, or illegal. The only exceptions to a judge's immunity to a lawsuit is if the conduct alleged was not a judicial action, or if the judge was acting in the complete absence of all jurisdiction. See, among others, Mireles v. Waco, 502 U.S. 9.

However, the term "lawsuit" doesn't refer to criminal charges. Footnote 1 of Mireles specifically says criminal liability isn't blocked by judicial immunity. While a judge can't be sued for damages for rigging a trial, the judge can be prosecuted for doing that.

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    Thanks for the link. I never thought I would crack up at a typo in a legal document, but "doe snot" made my day. Pictures in my mind... – DevSolar Aug 11 '15 at 12:06
  • The footnote in Mireles implicitly accepts that criminal judicial immunity may be available in some cases. I have added a more detailed answer which explains this. – sjy Mar 11 '18 at 6:43
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To answer the titular question: No, judges do not have immunity against criminal conduct in office. A recent notorious examples was the 2008 "kids for cash" scandal in which two Pennsylvania judges were convicted of numerous crimes for sentencing juveniles to for-profit detention facilities that gave them kick-backs.

Update: A "shocking" new case I just read has a Maryland County Judge pleading guilty to misdemeanor federal "deprivation of rights under color of law" for ordering a defendant to be electrically shocked in court for refusing orders to not speak. The prosecutor of the judge explained: "Disruptive defendants may be excluded from the courtroom and prosecuted for obstruction of justice and contempt of court, but force may not be used in the absence of danger."

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    I remember this from a documentary. Blew my mind that this kind of behavior could have gone on for so long. – Carcigenicate Aug 11 '15 at 1:31
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    In some circumstances they do actually have immunity even for acts traditionally considered criminal, when it occurs in their courtroom to which they preside with appropriate jurisdiction. Just as in in some circumstances they have been held personally liable in limited circumstances. Neither is definitive or one size fits all. The general rule, is judges have personal immunity for negligent, and even ill motivated actions in their official capacity. But as with all things, there are exceptions and laws evolve. You make an important distinction...... – gracey209 Sep 19 '15 at 2:04
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    exposure to liability vs "illegal", w/the latter connotation being criminal. I find the term is used the term illegal, or the question is x legal" I often see used too broadly, and so it is very much a noteworthy distinction. Being exposed civilly does not mean you e committed a crime, which is typical how people construe the term illegal. – gracey209 Sep 19 '15 at 2:05
  • @gracey209 - That's a good amount of additional info: You should post it as a separate answer. – feetwet Sep 19 '15 at 2:50
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    I think between yours and @cpast answer, you guys hit the important marks. I didn't want to answer too bc it would be just combining the two, with a comment for good measure! I just wanted to note how the judicial privilege has ebbed toward a lesser "divine right of kings" type immunity to a brave new world where the judiciary's right to blanket protections are no longer impervious to scrutiny. And, to highlight the point you made re the use of terminology that needs to be more carefully expressed since the nomenclature is specifically defined. 🚔👶🏽🍼🔑💰 changed the landscape forever! – gracey209 Sep 19 '15 at 3:23
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+50

At common law, judicial immunity does prevent judges from being charged with crimes committed while acting as a judge, as well as protecting them from civil lawsuits. But as observed in other answers, American judges are occasionally convicted of criminal offences as a result of their conduct on the bench. When judicial immunity has been raised, courts have generally found that these judges' criminal offences were not 'judicial acts' and therefore not subject to immunity. Although criminal judicial immunity appears to be theoretically available in the United States, it is unclear that it has any practical effect.

Qualification of the accepted answer

The accepted answer states that "footnote 1 of Mireles specifically says criminal liability isn't blocked by judicial immunity." In fact, the case cited in that footnote implicitly accepts that judicial immunity can apply to criminal liability – it's just not an absolute immunity. The footnote reads:

The Court, however, has recognized that a judge is not absolutely immune from criminal liability: Ex Parte Virginia, 100 U.S. 339, 348–349 (1880) ...

In Ex Parte Virginia, the Supreme Court found that a county court judge was not entitled to judicial immunity in respect of an indictment which accused him of excluding African-Americans from a jury on racial grounds. However, the Court reached this decision by finding that the judge was not 'performing a judicial act' in selecting the jury:

[I]t was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge .. In such cases, it surely is not a judicial act, in any such sense as is contended for here. It is merely a ministerial act ...

Alternatively, the Court held that the judge was not acting judicially because he went beyond the State law which granted him the power to select the jury:

But if the selection of jurors could be considered in any case a judicial act, can the act charged against the petitioner be considered such when he acted outside of his authority and in direct violation of the spirit of the State statute? That statute gave him no authority, when selecting jurors, from whom a panel might be drawn for a circuit court, to exclude all colored men merely because they were colored. Such an exclusion was not left within the limits of his discretion.

Origin of judicial immunity in the United States

Judicial immunity is an old common law principle which is often traced back to Floyd v Barker (1608) 2 Coke's Reports 23; 77 ER 1305. In that case, Lord Coke held:

It was resolved that the said Barker who was Judge of assise, and gave judgment upon the verdict of death ... and the Sheriff who did execute him according to the said judgment ... were not to be drawn in question in the Star-chamber, for any conspiracy ... the Judge ... being Judge by commission and of record, and sworn to do justice, cannot be charged for conspiracy, for that which he did openly in court as Judge ...

The Supreme Court seemed to adopt the principle in Bradley v. Fisher, 80 U.S. 335 (1871). However, this was a civil case and the Court did not explicitly endorse the application of judicial immunity to criminal charges:

The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well ordered system of jurisprudence ... Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed. The purity of their motives cannot in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608, where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their records, except before the King himself ...

Judicial immunity for criminal liability in the modern United States

Jeffrey M. Shaman, a professor at DePaul University, wrote the following in 'Judicial Immunity from Civil and Criminal Liability' (1990) 27(1) San Diego Law Review 1:

But for one narrow exception, judicial immunity does not exempt judges from criminal liability.149 Courts have stated unequivocally that the judicial title does not render its holder immune from responsibility even when the criminal act is committed behind the shield of judicial office.150 As is the case regarding immunity from civil liability,151 immunity from criminal liability does not extend to nonjudicial acts or acts taken in the clear absence of all jurisdiction.152 Even beyond such acts, however, judicial immunity generally is not available for criminal behavior ... The one area where judges can be said to enjoy immunity from criminal liability is for malfeasance or misfeasance in the performance of judicial tasks undertaken in good faith.154

The cases cited in footnotes 149 and 150 are Ex Parte Virginia, Braatelien v. United States, 147 F.2d 888 (1945) and McFarland v. State, 109 N.W.2d 397 (1961). As explained above, in Ex Parte Virginia the judge was held not to be acting judicially. The other two cases were decided on the same basis. In Braatelien, the Court of Appeals for the Eighth Circuit said:

It is true that as a general rule a judge can not be held criminally liable for erroneous judicial acts done in good faith ... But he may be held criminally responsible when he acts fraudulently or corruptly. Judicial title does not render its holder immune to crime even when committed behind the shield of judicial office. The sufficient answer to this defense is that Braatelien was not indicted for an erroneous or wrongful judicial act. He is charged with conspiracy to defraud the United States by corruptly administering or procuring the corrupt administration of an Act of Congress. The crime charged is distinct from his official acts.

Similarly, in McFarland the Nebraska Supreme Court held:

The rule as to judicial immunity is ... that a judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, provided he acts in good faith. However, any judicial officer who acts fraudulently or corruptly is responsible criminally, whether he acts under the law or without the law ... in this case the evidence shows that the defendant, while occupying the office of county judge ... collaborated with and acted at the direction of Rhodes. To say that such conduct was outside the realm of judicial action is to put it mildly.

So, the current position seems to be that while US judges enjoy a theoretical immunity from criminal liability for judicial acts performed in good faith, it is unlikely to operate in typical cases of judicial misconduct.

Postscript: a constitutional requirement?

Following the indictment of federal judges Otto Kerner Jr., Alcee Hastings and Harry E. Claiborne, some commentators have suggested that the Constitution may require that federal judges are immune from all criminal liability unless and until they are impeached in the Senate, on separation of powers grounds. See Hamilton W, 'Indictment of Federal Judges: Chilling Judicial Independence' (1983) 35 University of Florida Law Review 296 and Gold SW, 'Temporary Criminal Immunity for Federal Judges: A Constitutional Requirement' (1987) 53 Brooklyn Law Review 699. These articles also contain a more detailed account of the history summarised above.

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Simply put immunity applies when one is acting within job function and job parameters. Immunity applies unless when an action committed is understood to violate constitution that any average person would know. Acting under the color of the law means that the official has jurisdictional authority and is acting in their official capacity to rule on.

A judge who breaks the law does not act within their job function or job parameters on a fundamental level. They are supposed to be neutral and upholders of law and justice. Failing to act in an appropriate manner is a violation of their oaths and guidelines, which is treason, as they have wage war on the constitution and or the sovereignty of this country.....when failing to uphold neutrality, the judge has aided an enemy. The immunity is nearly perfect...it gives judges plenty of room to hang themselves. The problem is there are us too many judges that will obstruct justice for criminal judges.

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    This answer misstates the law of judicial immunity and advances frivolous and patently inaccurate legal arguments. – ohwilleke Dec 13 '16 at 19:55
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    "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." – Mark Jan 7 '17 at 3:08
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Yes. However, the instant they fail to act as Judge they are not. The same goes for cops and prosecutors. The concept of 'ultra vires' applies here. Provided they are acting in character according to their mandate, acting in accordance with the duties and responsibilities of their position, they are immune but once they, for example, show up to work high on marijuana, they could become personally liable criminally or civil.

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    This is wrong. As we discussed earlier, you are using "color of law" in a way that has little to do with what it really means -- a judge in a courtroom is virtually always acting under color of law, including if, say, they're taking bribes from one party to rule in their favor. Judicial immunity blocks any civil lawsuit arising from judicial functions. A judge taking bribes isn't acing in character according to their mandate, isn't acting in accordance with their duties and responsibilities, but can't be sued. Likewise for a judge who is high. – cpast Nov 7 '15 at 5:20
  • You are off in the weeds, fixated on civil/lawsuits. The question is "Are judges immune from prosecution of crimes" Also, please read up on the concept of color of law and what it applies to. – Ron Royston Nov 7 '15 at 5:26
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    You said "they could become personally liable criminally or civil." And you still appear to have no clue what "color of law" means. Color of law does not mean "acting in accordance with legal responsibilities." – cpast Nov 7 '15 at 5:38
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    It implies they're using authority, but not that they're using it legally (they can be flagrantly breaking the law and acting under color of law). So I'm not sure why you brought it up in the context you did. And, again, the civil liability thing is wrong. As is the criminal liability thing, incidentally -- judges have no criminal immunity (if they comply with the law, then that's not immunity: it's innocence). – cpast Nov 7 '15 at 5:52
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    Correct. I see we don't necessarily disagree after all. However, you're still wrong on civil liability (they don't have it, even under section 1983, for judicial functions unless the judicial functions were in the utter absence of all jurisdictions) and criminal liability (they are criminally liable just like any other citizen). – cpast Nov 7 '15 at 6:01

protected by Community Mar 11 '18 at 4:08

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