Judge seeks dismissal of suit based on immunity

By Kathy Helms-Hughes
STAR STAFF

   Meredith DeVault, senior counsel for the Office of the Attorney General, has filed a motion in Carter County Circuit Court moving for dismissal of a $2.75 million lawsuit filed by Sossner Steel owner Neil Friedman against Criminal Court Judge Lynn Brown.
   In a suit filed Aug. 16, Friedman accused Brown of violating his civil rights, false imprisonment and outrageous conduct. The complaint alleged that Friedman was falsely imprisoned by Brown following a probation revocation proceeding, "acting out of personal motivation to use his judicial office as an offensive weapon to vindicate personal objectives and animosity toward Plaintiff."
   According to the motion filed by Brown's attorney, the judge cannot be sued for damages in Friedman's case, regardless of any alleged animosity, because he is shielded from monetary damages by the doctrine of judicial immunity.
   Elizabethton Attorney Thomas Cowan claimed in the lawsuit filed on Friedman's behalf that his client was jailed and held without bond on Aug. 17, 2000, on a warrant issued by Judge Brown. However, Cowan said, the 11 month, 29 day sentence imposed for Friedman's conviction on a DUI charge had expired Jan. 3, 2000, and the judge had no jurisdiction over Friedman.
   "While Judge Brown may have lacked authority in this particular case to order Plaintiff to jail, this lack of authority does not abrogate Judge Brown's judicial immunity," the motion states.
   According to DeVault, the complaint filed by Cowan fails to state a claim upon which relief can be granted.
   "Judge Brown must be free to perform his job duties without fear of personal consequences," according to DeVault.
   Judges are absolutely immune from suit, both under state law and federal civil rights statutes, according to the motion. To support this, DeVault cited Bradley vs. Fisher, a case in which the court refused to allow a civil action to proceed against a judge who had prohibited an attorney from appearing in the court for allegedly using offensive language in threatening the judge "with personal chastisement."
   In that case, the court stated that "... a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful. ...
   "If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexations, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits," according to the Bradley ruling.
   The Tennessee Supreme Court adopted the general rule of judicial immunity in Webb vs. Fisher. There are two exceptions, however:
   * Judicial immunity does not protect a judge from suit for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity; and
   * Judicial immunity does not protect a judge from suit if his actions, though judicial in nature, are taken in the complete absence of all jurisdiction.
   "Neither limited exception to judicial immunity applies in this case," according to DeVault.
   Factors determining whether an act by a judge is judicial depends on whether it is a function normally performed by a judge and whether they deal with the judge in his judicial capacity, according to the motion.
   In the case of Mireles vs. Waco, the trial judge, angered that the public defender failed to appear for morning calendar, ordered bailiffs to bodily remove the public defender from another court and drag him to the trial judge's court. The Supreme Court held that the trial judge was immune, stating that the act of compelling an attorney's presence is a function normally performed by a judge.
   "Even if the trial judge authorized or ratified the bailiff's to use excessive force to bring the attorney to his courtroom, such excess of authority was not done in the absence of jurisdiction," the high court ruled.
   According to the motion filed by DeVault, the essence of Friedman's complaint is that Judge Brown initiated revocation of probation proceedings, revoked his probation and ordered him to jail when his probationary period had expired. The complaint also alleged that the State concurred with Friedman's request for dismissal of the revocation of probation proceeding.
   "Apparently Judge Brown disagreed with the parties and ordered the plaintiff to jail. The Court of Appeals granted the plaintiff's motion for release on bond on Dec. 21, 2000.
   "Even if Judge Brown lacked authority in this particular case to revoke Plaintiff's probation and send him to jail, he clearly had jurisdiction over this kind of criminal matter. Even if he committed a grave procedural error, a suit for damages against him cannot be entertained."
   The Tennessee Court of Criminal Appeals recently ruled that Judge Brown had no authority to revoke Friedman's probation 18 months after he was sentenced to jail on a drunken driving conviction.
   Friedman currently is serving a 90-day sentence in Sullivan County on an assault charge.
   According to the motion, as a Criminal Court judge, "Judge Brown may have acted in excess of his jurisdiction but certainly not in the clear absence of all jurisdiction. ... Judge Brown's acts were judicial in nature."
   The facts stated in Friedman's complaint belie Friedman's conclusory statement that Judge Brown acted in clear absence of jurisdiction, according to DeVault.
   "Mr. Friedman has no legally cognizable claim against Judge Brown for money damages. The doctrine of judicial immunity bars the complaint," DeVault said.