Immunity for judges takes justice out of equation

By now, you have probably heard of qualified immunity. It generally means that state and local officials cannot be held individually liable unless the official violated a “clearly established” right. Qualified immunity most often comes up in the context of police reform. It is what has protected police officers, and the municipalities that hire them, from paying money damages to citizens harmed by police misconduct.

Legislative efforts have been made to either limit or abolish qualified immunity to increase accountability. Three states, Colorado, Connecticut and New Mexico have passed legislation limiting police officers’ ability to claim qualified immunity as a defense. Federal legislation was introduced in 2020, and reintroduced in 2023, that would abolish qualified immunity.

But did you know that some government officials have a greater immunity than even police officers? Some officials, like the U.S. president, legislators, prosecutors and judges enjoy this greater protection. This protection is called absolute immunity.

On July 9, 1971, Ora McFarlin asked an Indiana state judge, Judge Harold Stump, to sign a petition authorizing the surgical sterilization of her “somewhat mentally disabled” 15-year-old daughter, Linda Sparkman, because, per McFarlin, young Linda had been staying out overnight with “older youth or young men.” Stump signed the petition that day.

Six days later, Linda entered the hospital, having been told that she was to have her appendix removed. The sterilization procedure was performed the following day. Linda was released several days later, unaware of what procedure she had undergone.

Linda later got married. She and her husband desired to have a child. Roughly two years after the operation, Linda’s inability to get pregnant led her to discover her sterilization. As you can expect, she sued everyone involved; her mother, her mother’s lawyer who drafted the petition, the hospital, and especially Judge Stump. Why Stump, you ask? Linda sued Stump because the judge had possessed no legal authority to sign that petition. Zero. Zilch.

The trial court dismissed Linda’s case against Stump. The case was appealed all the way to the Supreme Court. The high court ultimately concluded that the case was rightly dismissed. The reason? Stump enjoyed absolute judicial immunity. In short, this legal principle holds that judges cannot be sued for damages resulting from their “judicial acts.” This protection covers both mistakes and acts done with a malicious intent. If a judge performed a “judicial act,” he or she can be successfully sued only if the act was performed in “clear absence of all jurisdiction.”

The Supreme Court concluded that Stump’s judicial act of signing the petition was not performed in “clear absence of all jurisdiction.” While Stump did not have the authority to approve Linda’s sterilization, he did have the authority to approve the sterilization of incarcerated persons. Said another way, because Stump had the jurisdiction to approve or deny the sterilization of incarcerated citizens, he also had the jurisdiction to approve or deny the sterilization of private citizens (though he should deny them). I know. Lawyers.

The Stump case was decided by the Supreme Court in 1978. The decision left Linda with no legal remedy against the judge who signed the illegal petition authorizing the irreversible procedure that permanently destroyed her ability to bear children.

Absolute judicial immunity continues to result in more “Lindas.”

On Sept. 1, the Cincinnati-based 6th U.S. Circuit Court of Appeals denied the appeal of Alexzandria Orta. In 2020, Orta had been sitting in the courtroom of Tiffin-Fostoria Municipal Court Judge Mark Repp during her boyfriend’s court hearing. Repp — without any evidence — accused Orta of abusing drugs and ordered her to take a drug test. When she refused, Repp held her in contempt of court and sentenced her to 10 days in jail or until she agreed to take a drug test.

After arriving at the jail, a frightened Orta agreed to take the test, but was told by a sheriff’s deputy that she missed her chance. Orta was released the next day, after the county prosecutor convinced Repp that he could not detain Orta on those grounds.

Orta later sued Repp for violating her constitutional rights. Repp said he had absolute judicial immunity. Remember, judges are entitled to absolute immunity even if they have bad motives for their judicial actions.

Case dismissed.

Are these the results that we as a society want? Under the guise of judicial action, judges can wrongly approve rendering minors infertile, wrongfully imprison anyone in their courtroom, order police to seize individuals “with excessive force,” and remove attorneys from every case on the court’s docket for complaining about the judge. And those who are forced to suffer these injustices suffer twice. Once in the suffering. And again, when a lawyer tells them that there is no legal recourse.

The theory supporting absolute judicial immunity is the same as that supporting qualified immunity. We want judges to be able to exercise their duties without the fear of potential personal liability. We also want to shield them from the harassment and distraction that comes from being in litigation.

With police officers, it is frequently argued that they need immunity because their job compels them to make decisions on the fly, and often in dangerous situations. If officers did not have qualified immunity, they may freeze in these dangerous situations as they consider the consequences. This delay could potentially cost lives (either that of the officer or of a member of the public).

I can buy that argument for police officers, but definitely not for judges. They are, or at least they should be, deliberate in their decision-making. Judges are rarely compelled to make quick decisions. Given the wide authority they have, they are essentially dictators in their courtrooms. Things start and stop when they so dictate. Thus, even if the decision is life-changing, a judge has the power to take as much time as needed to come to a decision.

Further, it is not unreasonable to expect that a judge would have a deeper knowledge of the law and its boundaries than a police officer. Most states require judges to have been attorneys for at least six years before they can serve in a major trial court or appellate court. Some even require a decade of experience or more. These requirements exist for a reason. Judges are expected to know the law and to make decisions rooted in the law.

Considering that judges are expected to know the law and they can take as much time as they want to decide, why do they need absolute immunity? Most judges are deliberate, thoughtful and fair. Do they really fear a wave of litigation should they no longer have this immense legal shield? I would be interested to see the results of such a survey.

Regardless, we all can see the injustice in the instances of judicial misconduct that I noted. If judges, the arbiters of justice who often preside in centers of justice, are unwilling to sacrifice anything to prevent further injustice, then perhaps we really do need to stop calling it the justice system.

Eric Foster is a columnist for cleveland.com.