A Black Robe is Not a Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil Rights Cases
Southern Methodist University Law Review, Forthcoming
53 Pages Posted: 26 Oct 2005
Abstract
In civil rights cases, absolute judicial immunity has been extended to many defendants who are not judges including psychologists, social workers, mediators, receivers, probation officers, and licensing and parole board members. This expansion of the immunity defense seriously undermines civil rights enforcement, denies victims a remedy, and hinders the development of constitutional standards. It departs from the Supreme Court's decisions circumscribing the scope of absolute judicial immunity and cannot be justified by either historical understandings or policy arguments. Yet, surprisingly, this unwarranted expansion of absolute immunity has been ignored by the Supreme Court and has escaped scholarly criticism.
This Article examines the extension of absolute judicial immunity to two categories of non-judges: (a) court adjuncts and appointees within the judicial system who are not decision-makers; and (b) decision-makers outside of the judicial system where procedural safeguards are lacking. It explains that these decisions fail to satisfy the Supreme Court's requirements for establishing the entitlement to judicial immunity. It then proposes that this unjustified expansion of judicial immunity should be corrected by the adoption of a qualified immunity regime, which protects honest officials from excessive litigation, while allowing the vigorous enforcement of civil rights remedies.
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