California Coalition Expands Family Court Attack to Eighth Circuit Court of Appeals in Briefing Filed Today

by ccfceditor

March 6, 2015–San Diego, CA and St. Paul, MN–California Coalition for Families and Children, PBC today announces strategic legal partnership with  attorney Michelle MacDonald, MacDonald Law Firm, LLC,,\FamilyCourt to strengthen the family law reform movement within federal courts in the Eighth Circuit and Minnesota family courts.  In a brief filed today with the United States Court of Appeals for the Eighth Circuit, Ms. MacDonald—co-founder of Family Innocence, a nonprofit dedicated to keeping families out of court: resolving conflicts and injustices peacefully  (—advances groundbreaking arguments with assistance of California Coalition.

“We’re honored to stand with Ms. MacDonald and to engage the beast of Family Courts, and look forward to collaborating further in advancing the Grazzini-Rucki case through the federal courts” says Colbern Stuart, President of California Coalition.

The Grazzini-Rucki brief expands on the approach taken by California Coalition in its ongoing appeal in the United States Court of Appeals for the Ninth Circuit.  Excerpts from the brief prepared jointly by MacDonald Law Firm, LLC, Michelle MacDonald, California Coalition, and Colbern Stuart:



If aura there be, it is hardly protected by exonerating from
liability such lawless conduct as took place here
Nineteenth and twentieth century American judges have overstepped constitutional restriction to usurp powers reserved to the legislature and written for themselves an immunity far greater even than that of an English judge, or even a King, at common law.[2]  No court has ever denied that absolute immunity inflicts a “monstrous” injustice on wronged litigants, and taxes the credibility and integrity of judicial institutions.  Gregoire v. Biddle, 177 F. 2d 579, 581 (2nd Cir. 1949); Butz v. Economou, 438 U.S. 478, 521 (1978).  It has been justified as a necessary evil to protect the “ardor” of judges and prosecutors.  Id.  While one might reasonably have concluded that our efforts to assure “justice is done”[3] would have been better-directed toward inculcating ardor through discipline and integrity than by “expanding” immunity, the issue is moot.
Unlike the 1871 era of federal procedure in which a judge could be forced to stand trial on mere “ascription” of culpable intent to an accused act,[4] the reasonable concern is today resolved at the pleading stage.  Modernly, like all litigants a judge is protected by procedural barriers provided in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Pearson v. Callahan, 555 U.S. 223 (2009) which protect against a mere “ascription” of malice.  These are bolstered by the plausibility test provided in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Federal Rule of Civil Procedure 56 thereafter.  The purposes of immunity—to protect efficient process—is today accomplished at the pleading stage.
A Judge’s invocation of the doctrine of judicial immunity to preserve judicial efficiency has effectively denied citizens remedy—a fundamentalright—for judicial injury.
Fundamental  rights such as of familial association are destroyed by the nod of a head. In error, Pierson and Sparkman have deprived scores of Americans remedy for criminalwrongdoingPierson and Sparkman’s despotism must end today.


The Outrages Committed Against the Grazzini-Rucki Family and Their Attorney

Ms. MacDonald represents Ms. Sandra Grazzini-Rucki and her children, who have been devastated by Minnesota family courts.  The lawsuit describes the outrages committed by Minnesota Family Court Judge David Knutson against the Grazzini-Rucki family and their attorney Ms. MacDonald.  Ms. Grazzini-Rucki’s encounters with family courts began in 2011 when she sought and obtained a divorce, seeking orders of protection for her and her children.  Over the ensuing years, successive abusive rulings by the Minnesota Family Court rendered Grazzini-Rucki and her family homeless and bankrupt.

Judge Knutson’s illegal rulings included kicking the entire family out of their own home and separating the children from both parents, with no contact orders.  Last September, after a “listening session” conducted by Judge Knutson involving the Grazzini-Rucki children, two of Grazzini-Rucki’s children became so distressed that they fled from the homes into which they had been placed.  Teenagers Gianna and Samantha Rucki  have been missing since April 19, 2013.   In what can only be described as a bizarre absurdity, Judge Knutson insisted on conducting a “child custody “ trial after the children went missing.

Even more outrageous, after Ms. MacDonald advised Judge Knutson that the trial was improper, Judge Knutson caused Ms. MacDonald to be placed  in handcuffs shackled to a belt around her waist, sat in a wheel chair, and forced to finish trial to finish the “custody” trial without eyeglasses, pen, paper, or files.  While Ms. MacDonald was being arrested, courtroom bailiffs told Ms. Grazzini-Rucki that MacDonald would be retained in custody and would not be returning to the courtroom.  Ms. Grazzini-Rucki therefore left the courthouse.  When MacDonald was returned to the courtroom in shackles, Grazzini-Rucki had already left—yet Judge Knutson insisted on completing the trial without Ms. Grazzini-Rucki.  The events were captures on security video.  From the brief:

Judge Knutson sought, and the district court granted, dismissal of all claims as barred by absolute judicial immunity, finding every act accused in the Amended Complaint to be a judicial act within Judge Knutson’s jurisdiction.  Order at 21.  The many non-judicial acts of which Judge Knutson was accused in the Amended Complaint—but not analyzed in the district court’s sweeping immunity holding—include:
  • Searching and seizing person and property of Grazzini-Rucki and her children without probable cause or a warrant, including that she abandon her children;
  • Circumventing the Minnesota Court Information system regarding various Dakota County matters involving the litigants;
  • Causing state court administrators to assign “all future hearings” in various matters involving Grazzini-Rucki to Judge Knutson;
  • Illegally usurping jurisdiction over several existing matters involving Grazzini-Rucki, including the State of Minnesota against David Rucki, and third parties, and making rulings in those matters without notice to Grazzini-Rucki;
  • Illegally ordering Ms. Grazzini-Rucki’s children into “therapy”;
  • Illegally intercepting and sealing a recorded transcript Ms. Grazzini-Rucki was entitled to receive and view;
  • Ordering both parents to have no contact with their own children whatsoever;
  • Ordering Grazzini-Rucki to refrain from participation in her own family’s association activities;
  • Ordering Grazzini-Rucki to be separated from her children and have no contact with them at their schools, or through third parties;
  • Conducting a “listening” psychotherapy session between Judge Knutson, Dr. Gilbertson, and the Grazzini-Rucki’s children at which Judge Knutson was alleged to have coerced, intimidated, and threatened the Grazzini-Rucki children, contributing the children’s decision to run away from their home just days later;
  • Insisting that Grazzini-Rucki’s counsel try Grazzini-Rucki’s case while in handcuffs shackled to a waist belt, unable to rise from a wheelchair, without Grazzini-Rucki present, without Ms. MacDonald’s files, and without glasses, pen, or papers, seized by courtroom deputies;
  • Retaliating against Grazzini-Rucki’s counsel by the foregoing after Grazzini-Rucki’s counsel informed Judge Knutson that this action was pending against him, and ignoring the glaring conflict of interest.
Though this brief focuses primarily on the administrative assignment and “listening” therapy session, Appellant does not waive her assertion that none of the above functions, and those listed in the Amended Complaint warrant immunity.  The district court’s analysis of these many claims was skeletal yet sweeping, finding Judge Knutson immune for “actions taken in his capacity as a state court judge”, relying primarily on Stump v. Sparkman and Pierson v. Ray.  Order p. 32.  In response to Appellee Knutson’s Brief, and analyzed below, this broad “judicial capacity” scope and sweeping “analysis” was error.



Judges Bear the Burden of Proof on Immunity

Grazzini-Rucki asserted many of the challenges to judicial immunity as did California Coalition in its briefing before the Ninth Circuit.  California Coalition was pleased to join Grazzin-Rucki family in asserting those challenges in the Eight Circuit.  From the brief:

Judge Knutson Bears the Burden of Proving Immunity
Judge Knutson repeatedly asserts that Grazzini-Rucki “failed to raise” immunity issues in the district court.  See, e.g., Knutson Brf. p. 31, 34.  This is an improper attempt to shift onto plaintiff-appellant the burden of proving the affirmative defense of immunity, which rests solely with the party asserting it.  Fed.R. Civ.P. 8(c)(1);  Burns v. Reed, 500 U.S. 478, 498 (1991) (“An official seeking such immunity, however, must at the outset show that a “counterpart to the privilege he asserts” was recognized at common law in 1871, for “[w]here we have found that a tradition of absolute immunity did not exist as of 1871, we have refused to grant such immunity under § 1983.”).
The Supreme Court has repeatedly emphasized that an official claiming an affirmative defense of immunity bears the burden to prove that 1871 common law immunized the function of each act accused in the complaint.  See, e.g., Malley v. Briggs, 475 U.S. 335, 339-340 (1986) (“Our initial inquiry is whether an official claiming immunity under § 1983 can point to a common-law counterpart to the privilege he asserts.”); The Court “has for that reason been quite sparing in recognizing absolute immunity for state actors.”  Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
 The “function” analysis considers only historical fact.  Malley at 342 (“We emphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress’ intent by the common-law tradition.”); Tower v. Glover, 467 U.S. 914, 920 (1984) (“Section 1983 immunities are ‘predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.’”).
Courts investigating the intent of the 1871 42nd Congress have examined accounts of 1871 social and legal systems from Nineteenth Century case law, legal treatises, and the congressional record.  The Supreme Court undertook this historical analysis most recently in Rehberg v. Paulk,, 132 S.Ct. 1497 (2012), examining nineteenth century cases to determine that the function accused—testimony of a grand jury witness—enjoyed immunity at common law.  Id. at 1503-07.[5]
An officer’s failure to prove up a common law analog is dispositive of the issue regardless of countervailing policy considerations. Rehberg at 1502-03 (“We do not simply make our own judgment about the need for immunity. We have made it clear that it is not our role ‘to make a freewheeling policy choice,’ and that we do not have a license to create immunities based solely on our view of sound policy.”).  Granting an immunity absent this historical analysis is error.  Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974) (“These cases, in their present posture, present no occasion for a definitive exploration of the scope of immunity available to state executive officials.”). 
Neither the District Court Nor Judge Knutson Have Analyzed Historical Foundations for an Immunity of Accused Function
Judge Knutson proffered, and the district court undertook, no historical analysis of whether any of the two dozen functions accused in the Amended Complaint were functions that enjoyed judicial immunity at common law in 1871.  The district court’s sweeping Order proclaimed that Judge Knutson’s “case management, his signing of orders, the substance of his orders, and the trial proceeding” were all taken in a “judicial capacity.”  Order p 33.  The district court reached this conclusion finding only that (1) “Judge Knutson has not interacted with Plaintiff outside of his courtroom or his judicial chambers” and (2) “the underlying family law case was within [his] jurisdictional authority.  Order p. 33.  On these purported findings, the district court found Judge Knutson acted in a “judicial capacity” and was thus immune.  Id.
Analyzed below, this broad-brush “judicial capacity” scope and summary analysis fails to “affirmatively state” the defense, which was exclusively Judge Knutson’s burden.  Fed.R. Civ.P. 8(c); Rehberg, supra.
The District Court Extended Immunity Based On Factors Not Relevant to Judicial Immunity
The district judge applied a “judicial capacity” scope of immunity that was far broader than that provided in controlling Supreme Court authority.  Immunity does not depend on the act or actor, but on the nature of the accused act.  Sparkman at 362.  Immunity may exist only if the accused act is both (1) “judicial in nature” and (2) within statutory subject matter jurisdiction.  Id.  The first “Judicial in nature” factor in turn depends on (a) “the nature of the act itself, i.e., whether it is a function normally performed by a judge,” and (b) “the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”  Id.  Not all official or authorized acts of a judge are “judicial acts”—judges also perform administrative, ministerial, or other types of acts that are not entitled to judicial immunity.  See, e.g., Forrester v. White, 484 U.S. 219, 229 (1988) (firing court employees could be performed by administrator and thus not “judicial”).
The test to distinguish between “judicial” and other types of acts is to analyze whether the act can only be performed by a judge.  See Ex parte Virginia, 100 U.S. 339, 340 (1879) (selection of jurors could be performed by administrator, thus not “judicial”); Forrester, supra; Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993) (court reporters “part of judicial function” yet not absolutely immune).  Absolute immunity is justified because judicial acts—and only judicial acts—are subject to standardized, scrutinized proceedings, restrained by principles of law, and are subject to appellate review.  Butz v. Economou, 438 U.S. 478, 516 (1978); Pierson v. Ray, 386 U.S. 547, 564 n. 4 (1967).  Because judicial acts are subject to such safeguards, the Supreme Court has justified relieving the actors from liability for civil money damages.  Id.


Administrative Behaviors of a Judge in Assigning Cases Are Not Immune

Judge Knutson also asserted that his administrative or ministerial behaviors in Family Court case assignments was an immune “judicial act” simply because he was a judge.  Grazzini-Rucki and California Coalition analyzed abundant law demonstrating that even though an administrative act is authorized or performed by a judge, the administrative act is not converted into a judicial act.  From the brief:

Judge Knutson’s Administrative Behavior in Assigning Himself to Certain Cases is Not Immune

The district court’s high-level “analysis” that Judge Knutson’s “case management” and “trial proceedings” extended immunity far beyond Sparkman’s scope of immunity to include behaviors which are clearly not judicial acts.  As one example, Judge Knutson’s “case management” behaviors in assigning all Grazzini-Rucki cases, including all future cases with third parties, and those with the State of Minnesota,  to himself is clearly an administrative act because it cannot be reviewed on appeal, is not subject to law, is conducted in private before parties are even aware of a judge, and may be performed by administrators as well as judges.
     The cases cited by Judge Knutson support Appellant’s conclusion.  Martinez v. Winner, 800 F.2d 230, 231 (10th Cir. 1986)[6] relied on Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980) (extending absolute immunity for “jurisdictional authority to appoint and supervise court reporters.”).  In both cases the “jurisdictional authority” was a statutory grant of administrative authority—not jurisdiction.[7]  Parent v. New York, 786 F. Supp. 2d 516, 532 (N.D.N.Y. 2011) also drew authority from Matinez’s (moot) holding.  “The assignment of cases and issuance of consolidation orders are judicial functions normally performed by, and statutorily reserved to, Judge Lippman. See [statute] giving Chief Judge and Chief Administrator the authority to assign judges to judicial terms and parts. . . .”  Parent at 532 (citation omitted) (emphasis added).
Parent’s holding is inconsistent with the Supreme Court’s judicial act jurisprudence.  The fact that the “Chief Administrator” function happened to be performed by a judge does not convert the “administrator” function to a judicial one—nothing in the New York statute prohibits a non-judge from undertaking the role of “chief administrator”, meaning that, like juror selection, it is an act that may be performed by a non-judge, and thus not a judicial act.  See Ex Parte Virginia, supra.  A “Chief Administrator’s” assignment process is ministerial—the only “function” is to follow the assignment procedure.  Failure to abide the ministerial process is not an appealable event.  A judge or administrator is not applying law to facts.  The process is not highly scrutinized.  As such, Parent reached its holding on analysis inconstant with controlling Supreme Court authority, and is error.
Similarly, in Zahl v. Kosovsky, No. 08 CIV. 8308 LTS THK, 2011 WL 779784 (S.D.N.Y. Mar. 3, 2011) the district court considered a claim for immunity of a judge who allegedly “manipulated the assignment system to take control of Plaintiff’s case . . . .”   According to the district court in Zahl, the plaintiff “cite[ed] no relevant authority in support of his conclusory assertions that such actions vitiated Justice Diamond’s jurisdiction to handle his case, and the Court has found none.”  Id. at *9.  The Zahl plaintiff apparently failed to identify any of the abundant relevant authorities including Ex Parte Virginia, Forrester, and Antoine, supra, which provide means to distinguish non-appealable acts of administrators from appealable acts only judges may perform.  Moreover, like the district court and Judge Knutson, the Zahl court improperly placed the burden of proving immunity on the Plaintiff rather than the official.  Malley at 339.
Zahl also erroneously relied on language in Stump v. Sparkman, 435 U.S. 349 (1978) instructing courts to construe subject matter jurisdiction (the second element of Sparkman’s two-element immunity test) broadly.  Zahl at *9. Sparkman’s instruction does not apply to the first “judicial act” element.  Sparkman at 362.  As above, the Supreme Court has been “quite sparing” in extending immunity under the judicial act element of the test.  Buckley at 269.  Zahl also focused analysis on failure to recuse when faced with motion identifying conflict of interest.  Id.  Ruling on a motion is an act which only a judge “normally” performs, and thus falls within Sparkman’s “judicial act” scope.
Bracci v. Becker, No. 1:11-CV-1473 MAD/RFT, 2013 WL 123810, at *6 (N.D.N.Y. Jan. 9, 2013) aff’d, 568 F. App’x 13 (2d Cir. 2014) is derived from Martinez, Parent, and Zahl and is error for the same reasons.  Further, in Bracci the plaintiff’s accused Judge Mulvey’s (a “chief administrative judge”) failure to remove Judge Becker (the trial judge) form the case, making Bracci more of a recusal case.  Like Zahl, recusal requires ruling on a motion—a judicial act.
In both cases the courts found what they (incorrectly) identified as “jurisdiction” based on statutes authorizing judges—as well as non-judge administrators—to assign cases.  Statutory empowerment goes to Sparkman’s second “within the jurisdiction” element of the immunity test—but is insufficient to satisfy the first, “judicial act” element.  Sparkman, supra.[8]  Judge Knutson repeats the error.  Knutson Brf. at 29-30 (citations to Billingsley and Duty).
Judge Knutson’s reliance on Hardy v. Nw. Mem’l Hosp., No. 93 C 1348, 1993 WL 85750, at *2 (N.D. Ill. Mar. 22, 1993) is misplaced.  Hardy erroneously analyzed judicial acts under the test for prosecutorial immunity.  Hardy cited Imbler v. Pachtman, applying the “intimately related with the judicial phase of the criminal process” standard.  Id. at *2.  Hardy failed to cite or analyze under judicial immunity precedents including Sparkman, Pierson, Bradley, or Randall.  Judges do not perform prosecutorial function, and thus the immunity of a judge is lost if she performs such functions.   Lopez v. Vanderwater, 620 F.2d 1229, 1236 (7th Cir. 1980) (finding judge performing functions of a prosecutor not entitled to either judicial or prosecutorial immunity).
Finally, none of the authority relied on by Judge Knutson analyzed the critical test—whether the function of assigning cases was a judicial act at 1871 common law.  Absent such analysis, the authority is error.  Rehberg, supra.


A Judge Working with a Psychologist in Child Custody Proceedings Is Not Performing a “Judicial Act” and is Thus Not Immune

Judge Knutson followed the modern trend of Family Court judges to wander far afield from traditional judicial functions—in his case performing what he called a “listening session” to “further” the children’s psychotherapy.  It was because of Judge Knutson’s harsh commands at the “listening session” that the Grazzini-Rucki children ran away.  California Coalition assisted Ms. MacDonald in formulating arguments that disproved Judge Knutson’s claim to immunity for working with a psychologist in the custody setting.  From the brief:

Judge Knutson’s “Listening” Psychotherapy Session with the Grazzini-Rucki Children is Not a Judicial Act

 Judge Knutson concedes he conducted a “listening session” with the five Grazzini-Rucki children “for the sole purpose” of facilitating psychotherapy of the children —complying with a “request from a court-appointed therapist for a structured family meeting.”[9]  During this psychotherapy session Judge Knutson harshly reprimanded and the children.  Days later two of them ran away from their home and have not been seen since.[10]
Following Rehberg, the district court should have analyzed whether the function of psychotherapy performed at the “listening session” was an immune function at 1871 common law.  Rehberg at 1503. The district court’s failure conduct this historical inquiry is error sufficient to reverse.  Scheuer at 249-50 (1974).
If the district court had conducted appropriate inquiry, it would find no tradition for psychotherapy function at 1871 common law.  Given that psychotherapy is a function developed in the twentieth century, and is only legally performed by licensed psychologists,[11] it would seem unlikely that Judge Knutson could identify an 1871 common law immunity for his psychotherapy behavior.
Other courts considering the question have found no immunity for psychologists (Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (finding no “firmly rooted tradition” of immunity for functions performed by private psychiatrists employed by prison)).  See also Hoffman v. Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of cert.) (“The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983.  This all assumes, of course, that “social workers” (at least as we now understand the term) even existed in 1871. If that assumption is false, the argument for granting absolute immunity becomes (at least) more difficult to maintain.”).
Further, the history of psychologists in the divorce industry demonstrates such functions are late twentieth century innovations.  “Family Courts” are a creation of the 1970s after the 1966 California Report on the Governor’s Commission on the Family.  L. Friedman, Rights of Passage: Divorce Law in Historical Perspective 63 Or. L. Rev. 649, 667 (1984).  The function of “psychologist-as-judge” custody evaluator was unknown to a divorce courtroom until the mid-1990s “as the supply of psychologists continued to increase and stricter third-party payer regimens were imposed for mental health treatment (Gould, 2006). [C]ustody evaluation services generally are neither highly regulated nor institutionalized, but rather may be characterized as a cottage industry (Schepard, 2005).” Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations: The Need for Systems-Level Outcome Assessments, 47 Fam. Ct. Rev. 286, 291 (2009).
Finally, it is unlikely that the district court could have identified any function of a family court—including “listening sessions,” “therapy”, “reconciliation,” custody evaluations, or otherwise—existed at 1871 common law because in 1871 no civil judicial tribunal possessed jurisdiction over marriage, divorce, or child custody.  “It is elementary that in the early history of jurisprudence in England the common law courts exercised no jurisdiction over divorce cases, jurisdiction in such matters resting entirely with the ecclesiastical courts of the realm.” Peterson v. Peterson, 24 Haw. 239, 246 (1918).  See also Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law and Contemp. Prob. 226, 234 (1975).


 Modern Family Court Jurisdiction Is Inferior; If It Has Immunity It is Extremely Narrow

 Knutson’s Brief speciously asserts that general jurisdiction includes jurisdiction over “family law matters.” [12]Family court jurisdiction is incontrovertibly inferior because it is specific.  Minn. Stat. 518.  Many courts recognize family courts as inferior tribunals.  Family Court “in a dissolution proceeding is a court of limited jurisdiction.”  King v. State Educ. Dep’t, 182 F.3d 162 (2d Cir.1999); People United for Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 286 (S.D.N.Y. 2000) (Family Court not a “court of competent jurisdiction” for Rooker-Feldman analysis).
Randall v. Brigham, 74 U.S. 523 (1868) describes the limited scope of immunity for “inferior courts”: Judges exercising limited jurisdiction were immune for acts within the limited jurisdiction, and could be liable for civil damages for acts in excess of their jurisdiction, and for acts done “maliciously or corruptly.”  Randall at 531. [13]  While Judge Knuston bears the burden of demonstrating modern family court functions enjoyed any immunity at 1871 common law, in no case will he achieve an immunity scope greater than an 1871 inferior court; for judicial acts within their jurisdiction not done “maliciously or corruptly.”  Id.
Judge Knutson’s Assertion of Broad Immunity Lacks Authority
Judge Knutson asserts: “Acts and orders related to overseeing a family law case, including orders requiring therapy and efforts to facilitate it, are acts inherently judicial in nature.”  Knutson Brf. p. 35.  His authority does not support this proposition.
Judge Knutson cites Myers v. Morris, 810 F.2d 1437, 1448 (8th Cir. 1987), abrogated by Burns v. Reed, 500 U.S. 478 (1991).  Myers was the first case in this Circuit to consider the 1976 decision of Imbler v. Pachtman, 424 U.S. 409 (1976).  Imbler was the seminal Supreme Court case extending prosecutorial immunity under Section 1983 to acts of “the prosecutor in his role as advocate for the State.”  Id. at 431 n. 33.  The Court recognized that its general description was broad, and could potentially encompass administrative acts as well as prosecutorial acts, yet declined to provide a more precise definition:  “At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not require us to anticipate them.”  Id.
Myers picked up where Imbler left off, analyzing several acts by Scott County Prosecuting Attorney R. Kathleen Morris which fell within Imbler’s broad range of potentially-immune acts.  Meyers at 1449.  Myers extended a generous scope of immunity to every function of Ms. Morris that plaintiffs accused, including “her role in the initiation of criminal proceedings against them and her handling of evidentiary material.”  Id.  These several functions included investigation, advising police, interviewing children, and advocacy for the state during the criminal proceeding.  Id. at 1446-1452.
Meyers’ limited immunity incorrectly, drawing a line between pre-charging and post-charging phases.  Today post-charging investigative, administrative, administrative, and enforcement functions are not immune.  See, e.g, Kalina v. Fletcher, 522 U.S. 118 (1997).  Myers correctly limited prosecutorial immunity to criminal proceedings.  Meyers at 1452.  Myers also recognized that absolute immunity would not extend to enforcement or investigative functions in “approv[ing] or direct[ing] the removal of children from their homes upon the arrest of one or both parents.”  Id. at n. 11.[14]
Judge Knutson claim Myers immunizes “family law judges to work with experts to determine the care provided to children in custody and applying judicial immunity to that work.”  Knutson Brf. at 35.  This is incorrect.  Myers involved a criminal prosecution, not “family law judges.”  Myers at 1452 .  Myers did not involve Minnesota laws regarding “best interests,” nor a judge or psychologist determining “best interests”—but criminal prosecution.  Moreover, Myers expressly recognized that investigative functions such as the “listening session” in which Dr. Gilbertson and Judge Knutson “the session was held for the sole purpose of facilitating therapy…” are not prosecutorial. [15] Myers did not extend immunity to psychotherapy.
Judge Knutson finally claims—citing no authority—that “sealing the transcript of the session” was a judicial act.  The record indicates the opposite—that Judge Knutson was not undertaking the listening session pursuant to any order.  Having no relationship to any judicial act, the transcript—and its sealing—cannot be converted into one.


 The District Court’s “Judicial Capacity” Scope Relied on Elements Not Relevant To Judicial Immunity

The district judge’s sweeping analysis of the dozens of acts accused focused on a single fact that Judge Knutsen interacted with Grazinni-Rucki inside of his courtroom.  Order at 33.  Judge Knutson repeats the error.  Knutson Brf. p. 31.
The location of an accused act is not relevant to Sparkman’s two-factor test, which focusses on function regardless of location.  For example, Sparkman favorably cited Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974), which held that physically evicting a litigant from a courtroom is not an act “of a judicial nature.”  Sparkman at 370, fn. 10.  Justice White also cited a Sixth Circuit decision, Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970), holding that a county judge who had a plaintiff “forcibly removed” from a “fiscal court” and jailed was not immune.  Id.  See also Harper v. Merckle, 638 F.2d 848, 857 (5th Cir. 1981) (child support enforcement proceeding inside of courtroom and chambers not immune); Mireless v. Waco, 502 U.S. 9, 13 (1991) (physical assault outside of courtroom held immune).  Location of the act was one of the four-factor “debris” elements from McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972) which Justice White “cast aside” in distilling Sparkman’s “cogent two-part test.”  Harper at 857.[16]


 The District Court’s Reliance on Pierson v. Ray and Stump v. Sparkman Was Error

 Section 1983 Does Not Require Proof of Malicious or Corrupt Intent
The district court cited the seminal judicial immunity case, Pierson v. Ray, 386 U.S. 547 (1967), in connection with its holding that Judge Knutson is immune even if he acted “maliciously or corruptly.”  Order at 33.  Appellant did not—and need not—assert that Judge Knutson acted “maliciously or corruptly.”  Appellant asserts merely that he acted to deprive of constitutional rights.   Section 1983 does not require an allegation of specific intent, including malice or corruption, but only general intent to perform the act causing the deprivation of a constitutional right.  Monell at 685; Adickes v. S. H. Kress & Co., 398 U.S. 144, 232 (1970).  Malice and corruption were relevant in defeating common law immunities for common law torts.  Section 1983 was enacted to supplement common law tort liability—it turns on a “strict liability” standard, requiring no proof of intent.  IdSee also n. 22, infra (comment of Representative David A. Clark).
Pierson and Sparkman Erroneously Extended Common Law Immunity to Civil Rights Liability
 Pierson and Sparkman stand in error for exceeding the judicial power vested in United States courts under Article III of the United States Constitution.  In deciding Pierson and Sparkman, the Supreme Court construed Section 1983 to find an immunity which is not present on—and entirely inconsistent with—the face of the strict liability statute.   Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 665-94 (1978)  Yet Section 1983 is not a subject for statutory interpretation; clearer language has likely never emerged from Congress.  Id.; see also Monroe at 185-191.
Instead of examining the unambiguous statute, Chief Justice Warren in Pierson instructs us to examine congressional intent, which Chief Justice Warren claims does not indicate an intent to abrogate the common law immunities of a judge.  “The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities . . . .  The immunity of judges for acts within the judicial role is equally well established [as the speech and debate privilege], and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.”  Pierson at 554-555 (1967).
The “presumption” is as worthy as any speculation.  It overlooks the most obvious evidence of congressional intent—the unambiguous language of the statute itself.  Moreover, actual analysis of the congressional record, and history of judicial immunity reveals Chief Justice Warren’s presumption is simply wrong.
Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial Immunity
In Pierson Chief Justice Warren “presumed” that “the immunity of judges” was “equally well established” as the legislative privilege.  Remarkably, in presuming, he failed to conduct analysis of the common law of judicial immunity—citing only to Bradley’s (post-Civil Rights Act) holding and Scott v. Stansfield, 3 Law Reports, Exchequer, 220.[17]   Pierson at 554.  Despite having on hand the meticulous historical analysis of nineteenth century common law and the 42nd Congress’ legislative intent provided by Justice Douglas in 1961’s Monroe v. Pape decision, Chief Justice Warren’s 1967 opinion ignored it.
Dissenting, Justice Douglas—the author of Monroe—did draw from his prior historical analysis of common law and the congressional record to the Civil Rights Act, reaching a forceful conclusion: “The Court’s ruling is not justified by the admitted need for a vigorous and independent judiciary, is not commanded by the common-law doctrine of judicial immunity, and does not follow inexorably from our prior decisions.”  Pierson v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting).  Similar rich analyses and enlivened opinions are evident in Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 665-94 (1978); Pulliam at 529-544; Sparkman at 368 (Stewart, J., Powell, J., dissenting), Dykes v. Hoseman, 776 F.2d 942, 954 (11th Cir.  1985) (Hatchett, J, dissenting) (“[T]he en banc court holds that judicial immunity is complete, unqualified, and without exception . . .  As the majority concedes, no precedent, Supreme Court or otherwise, requires such a broad definition and application of the judicial immunity doctrine.  [N]o policy considerations justify such a result. . . .  Judges . . . will be able to deal willy nilly with the rights of citizens without having to account for willful unconstitutional actions.”).
Instead of analyzing judicial immunity, Justice Warren adopted analysis of legislative privilege from Tenney v. Brandhove, 341 U.S. 367 (1951).  In Tenney Justice Frankfurter considered whether a California legislative committee conducting a contempt proceeding against a man circulating a flyer protesting the committee was immune from an action under Section 1983.  Id. at 377.   The question was whether a common law “speech or debate” privilege protecting lawmaking activity could be extended to a lawmaker’s behavior in conducting the contempt hearing.  Id.
Justice Frankfurter traced the history of English common law preserving legislative speech or debate privilege as derivative of liberty—an extension of the voters’ freedom of speech and conscience.  Id. at 372-73.  Protection of “speech or debate” was necessary to prohibit the English King and his aristocracy from persecuting members of Parliament making laws unfavorable to the then-ruling class.  Justice Frankfurter aligned the English speech liberty with the federal “speech or debate” analog in the United States Constitution at Article I, Sec. 6, cl. 1.[18] Like Chief Justice Warren, Justice Frankfurter presumed—analyzing no legislative history—that the 42nd Congress would not have intended to limit any state’s legislative activity in enacting the 1871 Civil Rights Act because Congress was itself a “staunch advocate of legislative freedom.”  Id. at 376 (emphasis added).
Tenney justified extending the speech or debate liberty to the committee hearing function because legislators are directly-elected and immediately accountable to voters.  Id. at 378.  Tenney also held the narrow immunity was lost if “there was a usurpation of functions exclusively vested in the Judiciary or the Executive.”  Id.
Judicial Immunity is the Opposite of Legislative Privilege—Judges Are Sovereigns Possessing Not “Rights” but Delegated Authority
 Judicial authority and legislative freedom are night and day.  Judges exercise jurisdiction as sovereigns—not liberties from sovereigns.  While judges have all the rights of any citizen qua a citizen, a judge qua judge possesses no rights.  “First and Fourteenth Amendments restrain “only such action as may fairly be said to be that of the States.”  United States v. Morrison, 529 U.S. 598, 621 (2000).  “[T]he censorial power is in the people over the Government, and not in the Government over the people.”  New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964). There is no need for a judge to express opinions, experiences, or desires of her own or those she represents to create law—he/she is given law.  [19]Other than necessary for faithful adjudication, a judge’s “freedom of conscience” is irrelevant to judicial function—relevant “conscience” is given in the form of law that has matured through free debate elsewhere. County Judges do not function as a body, and (should) have no one to “debate.”  The United States and State of Minnesota constitutions do not extend a speech or debate privilege to the judiciary because courts are not empowered to speak or debate.  The function of a judge is to adjudicate—apply the given law to properly-admitted facts.  Judges are not representatives of voters, but independent of electoral will, passion, and accountability. There is no need to protect a judge’s “speech” other than to preserve the judge’s ability to pronounce adjudication—merely a “substantial state interest”[20] that must yield to Minnesota’s “fundamental law”—citizen rights such as remedy,[21] due process, equal protection, speech, and association.  See Theide v. Town of Scandia Valley, 217 Minn. 218, 226-27, 14 NW 2d 400, 406 (1944) (forcibly removing woman and children from their home in sub-zero weather by the town sheriff and forced to return to their “legal settlement” in another town for the purpose of obtaining poor relief violated “fundamental law”[22] despite consistency with state law.).  Minnesota courts may not construe statutes contrary to citizen rights under the “fundamental law.”  See T. Flemming, J. Norby, The Minnesota Bill of Rights: Wrapt in the Old Miasmal Mist, 7 Hamline L.Rev. 194 (1984).
 The long history of preservation of legislative speech and debate—a fundamental liberty—is entirely absent from the history of judicial immunity.  See Monell at 665-94; Pierson (Douglas, J. dissenting); Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (“Indeed, as the Court also indicated in Monroe v. Pape, supra, the legislative history indicates that there is no absolute immunity”); Pulliam at 540 (1984) (“every Member of Congress who spoke to the issue assumed that judges would be liable under § 1983”).  There being no “judicial speech” liberty in 1871, there is no reason to “presume” that the 1871 Congress would have seen need to expressly abrogate a tradition that has never existed.
Far from tradition, the “hoary doctrine of judicial immunity”[23] is expropriation.  Tenney’s “presumption” was a modest stretch of liberty over the border with sovereignty to protect the functions of elected representatives of the people.  Pierson’s adoption of Tenney’s stretch to protect sovereigns of the people was a full-force embezzlement of liberty.  Deployed today to exonerate sovereign county judges in their oppression of those in whom liberty is vested by the fundamental law, Pierson’s manufacture of judicial immunity is—in perspective—nothing short of a third American revolution.
Congress Expressly Intended to Abrogate Judicial Immunity
            Nor can Chief Justice Warren’s “presumption” withstand the incontrovertible record—The 1871 Congress repeatedly expressed intent that the Civil Rights Act would abrogate judicial immunity.  Congress adopted the language of Section 1983 from its criminal analog—the 1866 Civil Rights Act, today codified at 18 U.S.C. § 242.  Monroe v. Pape, 365 U.S. 167 (1961).[24]  Section 1983 was introduced by Ohio Representative Shellabarger, who explained his bill on the House floor by referencing Section 2 of the 1866 Act: “that section provides a criminal proceeding in identically the same case as this one provides a civil remedy for . . . ”[25]  The Acts thus “must be construed as in pari materia”—any construction of the 1871 Act must admit congressional intent in enacting the 1866 Act.  Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945).
On that record it is incontrovertible that the 42nd Congress affirmatively rejected common law judicial immunity.
I answer it is better to invade the judicial power of the States than permit it to invade, strike down, and destroy the civil rights of citizens. A judicial power perverted to such uses should be speedily invaded.
 Cong. Globe, 39th Cong., 1st Sess. 1837 (1866) (remarks of Representative Lawrence).  The 1866 Act was vetoed by President Johnson because it abrogated common law judicial immunity.[26]  In the fight to defeat the veto, Senate Judiciary Committee Chairman Trumbull expressed revulsion at the entire concept of judicial immunity: “It is the very doctrine out of which the rebellion was hatched.”[27]
            Section 1 of the 1871 Act (now Section 1983) passed rapidly through Congress because debate wasn’t necessary—Congress recognized Section 1 as merely “adding” a civil remedy to the 1866 Act.  Debate instead focused on section 2 of the bill (modernly Section 1985) because of concerns over federalism and regulation of private behavior.  Griffin v. Breckenridge, 403 U.S. 88, 99 (1971).
            The recorded debate demonstrates unequivocally that Congress intended to abrogate common law judicial immunity:
[T]he decisions of the county judges, who are made little kings, with almost despotic powers to carry out the demands of the legislature which elected them-powers which, almost without exception, have been exercised against Republicans without regard to law or justice, make up a catalogue of wrongs, outrageous violations, and evasions of the spirit of the new constitution, unscrupulous malignity and partisan hate never paralleled in the history of parties in this country or any other.
 Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) (remarks of Representative Platt).
What is to be the case of a judge? . . . Is that State judge to be taken from his bench? Is he to be liable in an action?  … It is the language of the bill: for there is no limitation whatsoever on the terms that are employed, and they are as comprehensive as can be used.
Id. (remarks of Senator Thurman).
“[T]he judge of a State court, though acting under oath of office, is made liable to a suit in the Federal Court and subject to damages for his decision against a suitor, however honest and conscientious that decision may be . . .”
Id. (remarks of Representative Lewis).  Representative Arthur recognized the law would be a drastic reversal of common law immunity:
Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts …. Willfulness and corruption in error alone created a liability . . . .  Under the provisions of this section every judge in the State court. . . will enter upon and pursue the call of official duty with the sword of Damocles suspended over him . . .”
Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366.[28]
Courts considering parallel questions have deferred to this vivid record.  See, e.g., Picking v. Pennsylvania R.R., 151 F.2d 240 (3rd Cir. 1945) (“But the privilege as we have stated was a rule of the common law. Congress possessed the power to wipe it out. We think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated by that act and in fact did so . . . .  The statute must be deemed to include members of the state judiciary acting in official capacity.”); Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 665 (1978); Owen v. City of Independence, Mo., 445 U.S. 622, 643 (1980) (“Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act”); Pulliam v. Allen, 466 U.S. 522, 543 (1984).
Far from an intent to incorporate common law judicial immunity, Congress in passing both Acts specifically intended to eliminate it as the source of the monumental evil of state-sponsored oppression jeopardizing our nation’s existence by precipitating civil warfare.[29]


“The devastation caused by Minnesota Family Courts may be even more abominable than what we have  seen in California, Florida, Connecticut, and throughout the nation” says Colbern Stuart, President of California Coalition.  “Ms. Grazzin-Rucki’s family was so severely abused by Minnesota Family Courts that the children simply couldn’t withstand the turmoil.  Ms. Grazzini-Rucki’s and her children’s tragedy shows how atrociously incompetent and downright criminal American Family Courts have become despite handling delicate family matters, and why Family Court must immediately cease its disastrous experiment with family well-being” says Stuart.

California Coalition is passing along Ms. Grazzini-Rucki’s and Ms. MacDonald’s request to assist in locating the Grazzini-Rucki children–if you have any information about their whereabouts, please visit to learn how to help.

With briefing on these critical family court immunity issues now ongoing in the Eighth and Ninth Circuits, Family Courts are facing more pressure than they’ve ever before experienced.  WeightierMatter will be posting regular updates of both cases.



[1] Sparkman at 368 (Stewart, J. dissenting).

[2]  “[T]o no one will we sell, to no one deny or delay right or justice.”  Magna Carta (1215); “[W]here there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.” Marbury v. Madison, 5 U.S. 137, 163 (1803) (quoting William M. Blackstone, 3 Commentaries *23).

[3] Connick v. Thompson, 131 S. Ct. 1350, 1365 (2011)

[4] “Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action.” Bradley at 348.

[5] Similar historical analyses are apparent in Monroe v. Pape, 365 U.S. 167, 172-85 (1961); Monell v. Department of Social Services, 436 U.S. 658, 703 (1978); Pierson v. Ray, 386 U.S. 547, 559-62 (1967) (Douglas, J., dissenting); Hoffman v. Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of cert.) (“The courts that have accorded absolute immunity to social workers appear to have overlooked the necessary historical inquiry; none has seriously considered whether social workers enjoyed absolute immunity for their official duties in 1871. If they did not, absolute immunity is unavailable to social workers under § 1983; Kalina v. Fletcher, 522 U.S. 118, 132 (1997) (Scalia, J., concurring).  See also Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (finding no “firmly rooted tradition” of immunity for function of a private psychiatrist employed by prison).

[6] Martinez is abrogated law “mooted” by abandonment of the appeal.  Martinez v. Winner, 800 F.2d 230, 231 (10th Cir. 1986).

[7]  Rheuark relied on Slavin v. Curry, 574 F.2d 1256, 1263-64 (5th Cir.) opinion modified on denial of reh’g, 583 F.2d 779 (5th Cir. 1978), overruled by Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976 (5th Cir. 1979) (“Under Texas [statutory] law trial judges select their court reporters, who thereafter serve during the pleasure of the judge.”  Sparks affirmed the Fifth Circuit’s en banc decision denying immunity to co-conspirators.  Dissenters in the Sparks en banc decision relied heavily on Slavin.  The Supreme Court’s affirmation in Sparks abrogates Slavin.

[8] A simple example is that the Chief Justice of the United States is authorized by law to serve as the Chancellor of the Board of Regents of the Smithsonian Institution.  20 U.S.C. § 76cc. Such authorization does not convert such service to a judicial act.  See, e.g., Lynch v. Johnson, 420 F.2d 818 (1970) (“A judge does not cease to be a judge when he undertakes to chair a PTA meeting, but, of course, he does not bring judicial immunity to that forum, either.”)  Id. at 820 (cited favorably in Sparkman at 370 n. 10).

[9] Opening Brief of Appellant’s, APP 124

[10] APP COA -291

[11] Minn. Stat 148.88, Psychology Practice Act. Also see Minn. Admin. Rules 7200

[12] Knutson’s Brief page 21

[13] This distinction was recognized in Sparkman, 435 U.S. 349, 356 (1978), fn. 7.  See also Randall v. Brigham, 74 U.S. 523, 535-36 (1868) (“In reference to judges of limited and inferior authority, it has been held that they are protected only when they act within their jurisdiction.”); Yates v. Lansing, 5 Johnson 282, 291 (N.Y. Sup. Ct. 1810) 1810 WL 1044, aff’d, 1811 WL 1445 (1811) (“[T]he judges of the king’s superior courts of general jurisdiction were not liable to answer personally for their errors in judgment. . . .  [W]ith respect to the inferior courts, it was only while they act within their jurisdiction.”); Phelps v. Sill, 1 Day 315, 327 (1804).  See also 1871 comments of Representative Arthur, infra, describing common law immunity: “Hitherto, in all the history of this country and of England, no judge or court has been held liable, civilly or criminally, for judicial acts …. Willfulness and corruption in error alone created a liability . . . .  “

[14] Specific to family issues, the Meyers plaintiffs accused “us[ing] the interviews [of children] to coerce perjured statements from young and vulnerable witnesses” in a criminal investigation and “initiat[ing] neglect proceedings in the family court on behalf of the Scott County Human Services Department [and] sign[ing] and approv[ing] the neglect petitions.”  Id. at 1450.  Because these functions are “functionally comparable to prosecutor’s initiation of the judicial process,” this Court extended absolute immunity.  Id. at 1452.

[15] Appellants’ Brf, APP 125

[16] All of the Fifth, Eleventh, and Ninth Circuit authority derived from McAlester’s four-part test is error after Sparkman.  See, e.g., Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir.  1985); Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985); Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985); Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986), and dozens of authority-in-error relying thereon.

[17] Analyzed in Bradley at n. 16.  “[A] judge of a county court was sued for slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant.”

[18] That privilege is narrow: “The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”  The privilege is against arrest—not civil liability—does not extend to felonies or treason, or “breach of the peace”— a misdemeanor.  Arrest outside of “Session” is permitted, and members maybe “questioned” for activity other than “speech or debate.”  Tenney at 377 (citing Kilbourn v. Thompson, 103 U.S. 168 (1880) (false imprisonment not privileged); Marshall v. Gordon, 243 U.S. 521 (1917).  Even so limited Jefferson was fearful of the power it gave legislators.  Tenney at 375.  Hamilton was not so fearful of “the least dangerous branch”—because it exercised no similar liberty. The Federalist No. 78 (A. Hamilton) (1788).

[19] See Separation of powers Minn. Const. Art 3, sec 1.

[20] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991).

[21] Minnesota Constitution, Article 1. sec. 8 provides:

Redress of injuries or wrongs.

Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person, property or character, and to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformable to the laws.

[22] “The entire social and political structure of America rests upon the cornerstone that all men have certain rights which are inherent and inalienable.  Among these are the right to be protected in life, liberty, and the pursuit of happiness; the right to acquire, possess and enjoy property; and the right to establish a home and family relations—all under equal and impartial laws which govern the whole community and each member thereof… The rights, privileges, and immunities of citizens exist notwithstanding there is no specific enumeration thereof in State Constitutions.”  Theide at 226-27, 14 NW 2d at 406.

[23] See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 337 (1969) (“Yale Note”).

[24] See also Yale Note at 327-328.

[25] Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871); Yale Note at 327.

[26] Yale Note at 327.

[27] Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) (remarks of Senator Trumbull); Yale Note at 328.

[28] See also Yale Note at 328 and references to additional consistent comments in n. 38.  “On three occasions during the debates, legislators explicitly stated that judges would be liable under the [1871] Act.  No one denied the statements.”  “In sum, the question of congressional intent seems relatively clear: there was no universal acceptance of the broad English immunity rule in 1871, and the only legislative history available supports the proposition that Congress intended Section 1983 to cover judges.”  Yale Note at 328. Yale Note’s 1969 author left open the door that “the legislative history does not preclude entirely the Court’s construction of the statute if the policy reasons for judicial immunity are sufficiently persuasive.”  That “policy reasons” door was closed eleven years later in Malley.

[29] Congress’ intent to hold judges accountable is recorded as recently as 1979 by the 96th Congress:

[Section 1983] is an essential element of an extraordinary series of congressional enactments that transformed the relationship between the Federal Government and its constituent parts.  [T]he very purpose of the 1983 was to interpose the Federal courts between the States and the people, as guardians of the people’s Federal rights—to protect the people from unconstitutional action under color of State law, whether that action be executive, legislative, or judicial.

Statement of Representative David A. Clarke, Chairperson, Committee on Judiciary, Government of the District of Columbia on the  Act of Dec. 29, 1979, 93 Stat. 1284, PL 170 LH, 1st Sess. (Dec. 29, 1979) (emphasis added).








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