Transcript

IN THE SUPREME COURT OF THE UNITED STATES

CYNTHIA A. FORRESTER, Petitioner, v. HOWARD LEE WHITE

No. 86-761

November 2, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:58 a.m.

APPEARANCES:

MARY ANNE SEDEY, ESQ., St. Louis, Missouri; on behalf of the Petitioner.

ROSALYN B. KAPLAN, ESQ., Assistant Attorney General of Illinois, Chicago, Illinois; on behalf of the Respondent.

PROCEEDINGS

10:58 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 86-761, Cynthia Forrester versus Howard Lee White.

Ms. Sedey, you may proceed whenever you are ready.

ORAL ARGUMENT OF MARY ANN SEDEY, ESQ. ON BEHALF OF PETITIONER

MS. SEDEY: Mr. Chief Justice, and may it please the Court.

The Petitioner in this case, Cynthia Forrester, sued her employer, Judge Howard Lee White, for intentional sex discrimination under 42 U.S.C. Section 1983, when he demoted and then discharged her from her position as Director of a Juvenile Court diversion program and juvenile probation officer for the Jersey County Illinois Circuit Court.

The issue for decision in this Court is whether a State Court Judge is engaged in a judicial act and therefore protected from a suit for damages by the Doctrine of Judicial Immunity when he makes a personnel decision regarding a Court employee.

We submit that the Seventh Circuit's ruling that the Doctrine of Judicial Immunity bars Cynthia Forrester's claim for damages expands the Doctrine of Judicial Immunity far beyond the limits created by this Court's decisions and beyond the scope necessary to effectuate its legitimate historical purposes.

We ask this Court to rule that a personnel decision is not a judicial act, and that the Doctrine of Judicial Immunity does not bar a suit for damages under Section 1983 for employment discrimination.

This Court's prior decisions clearly articulate what is a judicial act. I think it's clear from those decisions that a judge's decision to fire a court employee does not fit within the category of acts which this Court has defined as judicial acts.

The first principle in trying to determine whether or not an act is a judicial act is that that determination must be made on the basis of the characteristics of the act, not the status of the actor. In other words, the fact that the person is a judge does not make every act that that person engages in a judicial act. This Court established that principle in a case decided in 1880, Ex Parte Virginia, a case in which the facts were quite similar to the facts of the case of Forrester versus White. In addition, this Court has held explicitly that judicial acts are acts of adjudication. And I'd direct the Court's attention to its decision in Supreme Court of Virginia v. Consumers Union, a 1980 case in which this Court ruled that even an official action taken by a State Court Judge pursuant to explicit statutory authority is not a judicial act when that Judge acts not on parties litigant, and when the act does not arise out of a controversy which is before the Judge for adjudication.

I think that these cases together stand for the proposition that Judges are protected by the Doctrine of Judicial Immunity only when they are engaged in acts of adjudication, by that, we mean acts connected with a case, a controversy, a matter before a Judge for a decision by him or her acting as an adjudicator.

That principle has also been restated in two other recent decisions of this Court, the 1978 decision in Butz v. Economou and the Court's 1985 decision in Cleavinger v. Saxner. In the Butz case, this Court held that hearing officers in Federal administrative agencies are entitled to judicial immunity when they are hearing cases and controversies. In that decision, this Court noted that the officials in those cases issued subpoenas, ruled on proffers of evidence, make and recommend decisions, and these are acts which are integral elements of the adjudicatory process. Again, the kinds of things that the hearing officers in these Federal administrative agencies were going to be protected by the Doctrine in connection with were acts of adjudication.

In Cleavinger v. Saxner, 1985 case decided by this Court, the question arose whether prison officials acting as a disciplinary committee holding disciplinary proceedings with regard to prisoners were engaged in judicial acts and therefore protected from suit by these prisoners by the Doctrine of Judicial Immunity, and again, in that case, this Court held as recently as 1985 that when the attributes of judicial proceeding are missing, that there is no judicial immunity.

The decisions of this Court clearly hold that a judicial act is an act of adjudication, an act connected with or arising out of a case before a judge for adjudication. The judge's acts at issue in this case were two decisions; a decision to demote an employee, and a decision to discharge an employee, basically personnel decisions about a court employee.

Those decisions do not fit within the category of acts which this Court has ruled are judicial acts. Personnel decisions, no matter what the nature --

QUESTION: What would happen if the judge fired his clerk? Would that be judicial?

MS. SEDEY: It's our opinion, Your Honor, that it would not be, because it is not an act of adjudication.

QUESTION: Well, suppose he fired his law clerk. Would that be judicial?

MS. SEDEY: Under the Seventh Circuit's opinion, that would be a judicial act. Under the rule which we propose that this Court adopt here, it would not be a judicial act because it wouldn't be arising from a case or a controversy before the judge for adjudication.

QUESTION: Well, suppose the judge fired his assistant, his chauffeur? What would that be?

MS. SEDEY: Well, the Seventh Circuit's opinion would say --

QUESTION: I'm not talking about that. I'm asking you.

MS. SEDEY: All right, that would be an administrative act, not an act of adjudication because it doesn't arise out of any kind of matter before the judge.

QUESTION: Suppose he appoints a master to hear the case and fires him. Would that be judicial?

MS. SEDEY: I think it would depend on how the attack was made on the firing of the master. In other words, if the master himself brought suit --

QUESTION: Well, if the master happened to be a woman, would that be enough?

MS. SEDEY: The fact that she was a woman would not be enough, no, Your Honor.

QUESTION: You need more than that, don't you?

MS. SEDEY: I think we do.

QUESTION: And where is that here?

MS. SEDEY: What we have here is an action under Section 1983.

QUESTION: That doesn't mean -- you can assert anything in a pleading. That doesn't do it. I've read the statute and everything in this statute is judicial. Everything that this woman was doing was judicial. Everything that I read in here. On pages 84, for example.

MS. SEDEY: Everything that this woman did, assisted the judge --

QUESTION: Well, isn't assisting the judge judicial?

MS. SEDEY: She was assisting the judge in carrying out his judicial functions, but the judge's decision to terminate her was not judicial, it was administrative. It didn't arise out of any case or controversy before the judge for decision. And that's the distinction here that we urge the Court to adopt, that an act that arises out of a case or a controversy before a judge for decision is a judicial act, an act of adjudication.

QUESTION: May I give you another example, somewhat like Justice Marshall's, I guess. Supposing you have in a give county in a State judicial system, a chief judge who has the assignment power to assign cases. And he decides to assign a woman judge to the criminal calendar for the month of October.

And she brings a lawsuit and says you did it only because you don't like women, you like them to have the undesirable assignments. Would she have a claim?

MS. SEDEY: I believe she would, because I believe that that's a decision about assigning work, which is a personnel decision. On the other hand, if a litigant who was coming before her for a decision of a case tried to attack that decision, I don't think that the litigant could attack that decision because it's a judicial act viz a viz the litigant.

QUESTION: Supposing in a multi-judge appellate court, one of the judges didn't like his opinion assignments, and he claimed that the chief judge was just assigning him because he didn't like his religion or his race or his sex.

Would he have a claim?

MS. SEDEY: In theory, I believe that that judge would have a claim, because again, with regard to that judge's work assignment, it is essentially a personnel decision, an administrative decision of the chief judge to assign certain work to that individual.

On the other hand, if an attorney who was going to appear before the court wanted to attack that decision, I believe that that would not lie because again --

QUESTION: I understand that.

MS. SEDEY: -- viz a viz the litigant, it's an act of adjudication. So I think that's the important distinction here, Mr. Justice.

Essentially, personnel decisions are administrative acts. There are many acts that a judge takes, any judge at any level, which are official acts, acts assigned to the judge as a part of his or her official functions, acts that perhaps are in fact authorized by statute, but as this Court has ruled in Ex Parte Virginia and Consumers Union, the fact that an act is an official act of the judge, the fact that an act is carried out pursuant to statutory authority does not make it a judicial act for purposes of judicial immunity.

Our position that it is only acts of adjudication which are protected by judicial immunity also derives additional support from the Doctrine's historical development. The earliest cases --

QUESTION: Well, let me interrupt you for just a minute, Ms. Sedey, if I may, to follow up on some of the earlier questions.

Supposing that a judge is conducting a proceeding in Court, and he has a clerk sitting there, a clerk of the court, who he thinks is unduly loquacious, talking with people coming in. And so he tells her not to do that, and she says, you know, when a man sits here on alternate days to me, you let him talk that way. I think you're just discriminating against me. He says, you do it again, I'm going to hold you in contempt. And so she does it again, he holds her in contempt.

Now, is he immune from that? I mean, that's closer, much closer to being a judicial thing, I think, than the examples previously given.

MS. SEDEY: I think it is because it arises in connection with the judge carrying out his judicial function, the function of adjudication, which is a different matter I think than the matter of an employment decision to hire, fire, demote, whatever, which I believe is a different kind of an act.

QUESTION: Of course, your argument is still the same. You're discriminating on the basis of sex between two similarly situated deputy clerks of the court.

MS. SEDEY: Well, for instance, I don't think that a litigant who felt that a judge was discriminating between two different litigants in similar law suits could bring an action attacking the judge's decision in her case.

QUESTION: No, that's pretty clear.

MS. SEDEY: Right.

QUESTION: Could I ask you, what if the suit were brought against the clerk? What if this particular law clerk or officer, probation officer, suppose the suit is against the probation officer, and the claim is that the probation officer has been misleading the judge because of sexual or racial discrimination? So what if it's a racial discrimination claim against the probation officer in connection with her work?

MS. SEDEY: Is it by a litigant, somebody who complains about the kind of advice?

QUESTION: Yes.

MS. SEDEY: Then I believe that the probation officer would have derivative judicial immunity to suit by a litigant who was unhappy about the advice that she was giving the judge in connection with decisions about say probation or sentencing, that kind of thing.

QUESTION: But the judge doesn't have absolute immunity when he fires her?

MS. SEDEY: That's correct. The judge would have absolutely --

QUESTION: Does he have any immunity?

MS. SEDEY: I think he has qualified immunity exactly the same as any other governmental official would have with respect to administrative acts, in other words, qualified good faith immunity similar to that provided to every governmental official.

QUESTION: Ms. Sedey, I'm not sure I understood your response to the Chief Justice's hypothetical. I was admiring your rigorous adherence to the logic of your position, but ten I didn't really understand that logic in connection with the Chief Justice's question. Did you say that there would be judicial immunity, absolute judicial immunity if the judge fired a clerk for making noise during the argument of a case?

MS. SEDEY: Yes. No. Not if he fired her for making noise during a decision in a case. I believe that the hypothetical had to do with the issuance of some kind of contempt order in connection with the proceeding, and it seems to me that a contempt order in the context of a hearing is different from the administrative decision to fire that employee for her conduct or his conduct in the courtroom.

QUESTION: What's the magic about it, that it is a contempt order, and therefore itself a judicial act, or rather that it is a contempt order issued in connection with another judicial proceeding?

MS. SEDEY: Exactly, the fact that --

QUESTION: The latter?

MS. SEDEY: The latter, the fact that it's a contempt order issued in connection with a judicial proceeding, rather than an administrative personnel decision issued in the judge's capacity as the employer to discharge the employee.

QUESTION: So having held her in contempt, if he should fire this contemptuous clerk, would there be a cause of action for that firing?

MS. SEDEY: Yes, I believe there would be.

QUESTION: There would be, so he could hold her in contempt but couldn't fire her?

MS. SEDEY: That's correct. That would be our position.

QUESTION: What if he fired her and truthfully said the reason I'm firing you is because I don't retain people whom I've had to hold in contempt?

MS. SEDEY: Then, Justice, I would say that he has a good defense to the law suit. But the cause of action for money damages is not barred. It is simply that he has a good defense, as any other governmental official would be required to put on a good defense. That judge in that situation could do that as well.

But what we're dealing with here is not the merits of the jury's determination here that there was sex discrimination or the merits of the judge's decision to discharge the petitioner in this case. We're talking about the question of whether the petitioner has a remedy at all. Whether she can bring the claim.

And I would remind the Court that even an action against a judge for injunctive relief is not barred by the Doctrine of Judicial Immunity, so that --

QUESTION: No, but here, we're talking about money damages?

MS. SEDEY: We are, that's correct.

Again, I would suggest that the historical underpinnings of this Doctrine provide strong support for our position that suits about employment decisions are not barred by the Doctrine of Judicial Immunity.

QUESTION: What would the judge have to do? File charges against this person?

MS. SEDEY: No. The judge could and should discharge that person if the judge has a legitimate nondiscriminatory reason for doing so.

QUESTION: That's this case, I'm talking about this case here?

MS. SEDEY: Right.

QUESTION: What could he have done in this situation that would have satisfied you?

MS. SEDEY: He could have fired her if he had a legitimate reason not based on her sex.

QUESTION: No, you know that's not my question. With the exact same facts as this case, what could he do?

MS. SEDEY: He could put on a defense to her law suit that said that it wasn't discrimination, and that's what he did here. But a jury determined that it was.

QUESTION: And that's all he can do?

MS. SEDEY: That's correct.

QUESTION: He has no protection at all?

MS. SEDEY: He has the same protection that any other --

QUESTION: Suppose the probation officer's a man and punches the judge in the mouth, what could the judge do then?

MS. SEDEY: Well, I think the judge could discharge that individual regardless of their sex?

QUESTION: He could?

MS. SEDEY: Absolutely.

QUESTION: Oh, he can get some relief sometimes.

And what's the difference between that case and this case?

MS. SEDEY: The difference between that case and this case is that in this case --

QUESTION: She didn't punch him in the mouth.

MS. SEDEY: -- that's right.

QUESTION: That's the difference.

MS. SEDEY: That's one of the differences. But the other difference is that in that case, the judge's decision was not based on that individual's sex, race, religion, age, national origin. In that case, the judge's decision was a legitimate non-discriminatory one.

QUESTION: So then you come back that if this were a man, he wouldn't have any cause of action?

MS. SEDEY: No.

QUESTION: But he has a cause of action if he's a woman. Is that your position?

MS. SEDEY: No, because a man has a cause of action for sex discrimination, just like a woman has.

QUESTION: In this case?

MS. SEDEY: In any case, certainly. And the judge would have a real strong defense in that case, I think, that the decision was a legitimate one based on the employee's behavior, not based on the employee's sex.

QUESTION: Well, if there's qualified immunity in this case which you concede there is to hold the judge liable for damages, it would have to be found that he had to know that he was firing for sex discrimination, because of gender.

MS. SEDEY: No. I think that what qualifies --

QUESTION: Or that he -- well, what do you think the test is for qualified immunity?

MS. SEDEY: I think that the qualified immunity would simply provide him with an opportunity to say that he didn't realize that the conduct that he's charged with violated a statute, and I don't really think it would do him much good. Qualified immunity in a discrimination case is not of much assistance to a public official.

QUESTION: It would be of some assistance to someone in the Seventh Circuit from the time the Seventh Circuit decided this case until if we came out with a different decision?

MS. SEDEY: That's exactly correct, it would.

QUESTION: Some administrative acts are so closely connected to the adjudicatory function that immunity would attach? For example, the closest example to that was the example that Justice Stevens posed about the assignment of an opinion.

What if it isn't just the assignment of an opinion but the assignment of a judge to a particular case by the chief judge of a district, and the litigant comes in and says, this judge is a judge that is known to be a hanging judge or whatever, to be a judge that finds the facts against the plaintiff, and the only reason that that judge was assigned to this case was because I'm a woman.

MS. SEDEY: I think that that litigant could not bring a suit in connection with that decision.

QUESTION: But that's an administrative decision, isn't it?

MS. SEDEY: But viz a viz the litigant, it's a judicial act, it's an act connected with the proceedings that the litigant is involved in.

QUESTION: I see, so you'd allow the litigant to sue, but you would not allow the judge who had been assigned to sue, is that right?

MS. SEDEY: I would not allow the litigant to sue because of judicial immunity.

QUESTION: I'm sorry. You would not allow the litigant, but you would allow the judge to sue?

MS. SEDEY: That's correct, because viz a viz the judge whose unhappy about the assignment, there's nothing going on with regard to her that has to do with the adjudication of any particular controversy, it's simply an administrative decision to assign her work which she believes was made on the basis of her sex. And in that situation, I don't believe that the Doctrine of Judicial Immunity would bar the suit.

I've reserved some of my time, so I'll sit down for the time being.

Thank you.

CHIEF JUSTICE REHNQUIST: You may proceed, Ms. Kaplan.

ORAL ARGUMENT OF ROSALYN B. KAPLAN, ESQ. ON BEHALF OF RESPONDENT

MS. KAPLAN: Mr. Chief Justice, and may it please the Court.

The Seventh Circuit properly upheld a grant of judicial immunity in connection with the actions of Judge White in this case. And I would ask this Court today to recognize that where an employee's tasks are an integral part of the discretionary judicial decision making process acts in regard to personnel decisions regarding this employee ought also to be recognized as judicial acts, and the judge ought to be entitled to immunity for executing such acts.

The duties of a probation officer have been well recognized as substantive functions that assist the discretionary decision making process. The substance of a judge's sentencing decisions, his disposition in juvenile cases are going to reflect the quality, the advice, the recommendations of his probation officer. The soundness of those decisions is an important consideration and a judge who is concerned about the quality of his decisions has got to make a personnel decision reflecting his concerns for his decision making tasks.

QUESTION: What about a United States attorney who fires an assistant United States attorney on the claimed ground that the person's incompetent, but the individual fired claims that it was because of sex discrimination?

MS. KAPLAN: The immunity that would be addressed there would likely be an executive type of immunity and the considerations are going to have to be different accordingly.

QUESTION: Why? Why? I don't see why. I mean, you have the same function. The prosecutor has immunity only with respect to his prosecutory decisions that are related to the judicial function.

MS. KAPLAN: To the extent that Your Honor is talking about the quasi judicial immunity that's extended to a prosecutor in connection with prosecutorial decisions and he has to address a situation where his employee is assisting him in making discretionary decisions, I would agree that the same analysis would apply.

I'm sorry if I misunderstood Your Honor.

The point I'm making here is that when an employee is involved in a task that is an integral part of a judicial process for which immunity applies, the personnel decisions regarding that employee should equally be recognized as judicial acts and entitled to the same sort of immunity.

QUESTION: So assistant U.S. attorneys can be fired without being liable for suits.

MS. KAPLAN: To the extent that assistant U.S. attorneys are engaged in the same discretionary function.

QUESTION: I don't know what you mean by, to the extent that. They are. I mean, they all are, aren't they? That's what they do. They prosecute cases, right? So therefore, if one is fired for incompetence, allegedly for incompetence, no suit would lie for sex discrimination?

MS. KAPLAN: Yes. The same reasoning would apply, Your Honor.

This Court has recognized that for a member of Congress, for example, that member of Congress cannot execute all of his legislative functions by himself. He must have legislative aides, and the duties of those to the extent that they are legislative duties which are those of the member of Congress --

QUESTION: Let me just pursue Justice Scalia's example a little further. Say a prosecutor adopted a policy that he would hire only white males. He announced it publicly, this is all I want, because my experience is they're the best prosecutors. And that could not be challenged in court?

MS. KAPLAN: Certainly, it could be challenged, Your Honor. But the question here is whether he would be subject to an action for damages. This Court has noted that prosecutors are subject to very strict internal controls.

QUESTION: But to be challenged in an injunction suit is the only you could do it?

MS. KAPLAN: Could be that way. Could be done through --

QUESTION: So then what he does, he just says, I'll repeal that policy, then he just continues along doing exactly the same thing, and he couldn't be --

MS. KAPLAN: Your Honor, he could be disciplined internally as a prosecutor. He could be subject to criminal sanctions for an intentional violation of the Federal law, as of course could a judge. The immunity that we're arguing here is only an immunity from liability for a civil action and damages.

And it further is a policy that is a policy that has often been recognized --

QUESTION: Are you saying that this particular plaintiff could bring an action for reinstatement and get her job back?

MS. KAPLAN: An equitable action has been allowed by this Court under Pulliam v. Allen. As to whether or not this individual would be entitled to the relief of reinstatement, I believe that --

QUESTION: If she proved that the only reason for the discharge was this sex discrimination?

MS. KAPLAN: I believe that would however pose another difficulty. The courts even in addressing equitable relief, for example, under Title VII, have recognized that they will find other relief than to require that an individual work very closely with an individual who has been fired.

QUESTION: But you answer on my male whites only prosecutor was well, he could get equitable relief, but now you're saying, well we can't give that either.

MS. KAPLAN: I don't know that each assistant prosecutor would work so closely with the United States Attorney.

QUESTION: Well, say you had right before the change of Administration, you had five women and five black assistant prosecutors and ten whites. And they fire all except the ten white males, and just replace them with ten other white males. Nothing could be done about it as I understand you.

MS. KAPLAN: No, Your Honor, I'm sorry. That's not what I mean. In the situation of a staff of attorneys working for one prosecutor, I believe that equitable relief would lie. That situation has got to be distinguished from this situation.

QUESTION: Well, why wouldn't it lie here? That's what I don't understand.

MS. KAPLAN: I'd like to distinguish that on the basis of the close and personal relationship in a very small office in a county court where there is a judge working closely with one probation officer and all of those functions are performed together. I think it's a difference in degree and equitable relief would have to take that into consideration.

QUESTION: So if it was Cook County instead of where the case arose, you have a whole lot of probation officers, then you could grant equitable relief?

MS. KAPLAN: I think that perhaps equitable relief would lie. There's a different procedure involved.

QUESTION: If that's true, how does that really solve the problem that the Immunity Doctrine's supposed to solve in part of avoiding a lot of law suits and not tying up the judge's time. Because if you just say to this person who's been improperly or allegedly improperly discharged, you can't sue for damages, I would assume they'd come in and sue and ask to get their jobs back.

MS. KAPLAN: I think that's a possibility. I think that's a possibility that this Court allowed to exist through its decision in Pulliam v. Allen, and that there are still other interests inherent in the Doctrine of Judicial Immunity and one of those is the potential liability of a judge for an action in damages.

The state of the law on judicial immunity as it exists now is that an action for injunctive relief will lie. That has to be acknowledged. Nonetheless, I think there are still important considerations under the function of judicial immunity and that a judge ought to be able to take those into account and not be risking his personal action for damages and to cut back on some of the time that he must spend involved in litigation in order to fulfill his decision making process.

Certainly, his fears of retaliation are realistic fears. In Pulliam v. Allen, the dissent of this Court noted that actions for discrimination had geometrically increased since the enactment of Section 1988. Last year alone, civil rights employment litigation increased in the Federal District Courts by 14 percent, and this was at a time when other civil actions, the filing of other civil cases had decreased for the first time since I believe 1977.

The fear is there. It's a realistic fear perhaps a judge that knows more about the process than anyone is going to be more concerned than anyone of risking this kind of litigation. So the question becomes, when a judge is faced with a decision of retaining a probation officer in whom he lacks confidence, should he have to weigh in the balance the threat of litigation by that particular individual?

There's always a balance involved in any case of judicial immunity. And the balance has to be addressed. And I believe the balance in a particular situation where an employee is part of the substantive decision making process that a favorable decision for judicial immunity will further the judicial process.

Certainly the judge may be disciplined. Certainly the judge may be subject to an action for criminal violations of the Federal law. But I ask this Court to conclude that the balance is in favor of a finding of immunity for this kind of personnel action by a judge.

Not only is immunity proper as a matter of policy, but I believe it is consistent with the precedent of this Court. Certainly as a general proposition, it's recognized that judicial immunity shields a judge from liability for damages for his judicial acts taken within the general scope of his jurisdiction.

QUESTION: May I ask, because as I understood -- the Seventh Circuit opinions a little hard for me to know just where they draw the line between this kind of immunity.

Do you think it applies, for example, to secretaries, law clerks, other employees in an office?

MS. KAPLAN: I think that the Seventh Circuit's opinion would apply very likely to an individual like a law clerk, and perhaps to a staff attorney in certain courts. It would not I believe apply to a secretary, and that five days after the Court entered this opinion in Forrester v. White, it entered an opinion in McMillan v. Svetanoff, and in that case, a Judge had fired his court reporter, and the Court did not disavow its reasoning in Forrester v. White, but it explained that in the case of a court reporter, the individual employee did not assist the judge in his decision making functions, and because of that distinction, the relationship was more that of an employee and an employer, rather than a judge and an assistant to a judge.

As a matter of fact, the McMillan rationale was later applied by the Sixth Circuit in Guercio v. Brody, and in that case, a federal bankruptcy judge was held not immune from an action for damages for firing his personal secretary. So I believe that that is where the line is drawn under the Seventh Circuit's reasoning. And it's a line just based upon the contributions that the employee makes to the judicial process.

It's by looking at the relationship to the judicial process that I believe this Court has identified what is a judicial act. In Stump v. Sparkman, the Court established its two criteria; whether the challenged act is a function that is normally performed by a judge, and whether the parties dealt with a judge in his judicial capacity.

Now, the case law establishes that these criteria were not intended to narrow the scope of what is a judicial act. In Stump, the matter before the Court was an ex parte petition. The person affected by the petition was not before the Court in person or by counsel. There was no right of appeal for the affected person.

But nonetheless, it was regarded as a judicial act and entitled to immunity.

QUESTION: What if there are several judges in a certain place and there's a chief judge. And a probation officer serves one or two of the judges but he gets fired by the chief judge whom the probation has never ever helped, and isn't about to. The chief judge doesn't need a probation officer to help him. Is that judge absolutely immune?

MS. KAPLAN: Yes, Your Honor, I believe that that judge is absolutely immune because he is assisting the decision making process, I would assume, in firing a probation officer if that is his responsibility. Ordinarily, this kind of decision --

QUESTION: Well, that's quite a different rationale than you just stated awhile ago

MS. KAPLAN: Your Honor, I'm proposing a rationale --

QUESTION: On that basis, I would think you would say that he should be absolutely immune for firing his secretary.

MS. KAPLAN: The secretary does not contribute to the decision making process and the probation officer does.

QUESTION: The secretary doesn't participate in the -- who types the opinion?

MS. KAPLAN: I think that, Your Honor, is not a discretionary function. I hope not. I beg your pardon. I'm referring to someone who has substantive input in the discretionary functions.

QUESTION: What if the judge used his secretary to do legal research for him and analyze the record and check citations. Some secretaries have skills that others don't have. Wouldn't that make her decision immune?

MS. KAPLAN: I think that that could change the decision, Your Honor, because it sounds to me as if you're describing a situation of someone whose more like a paralegal assistant, than simply a secretary who is engaged in what you might call more ministerial type functions, as the Court has recognized a distinction there.

QUESTION: The line you're asking us to draw, as the last few questions indicate, really requires very specific inquiry into the character of the particular individual involved, as opposed to the line which your opponent would draw, which is one that can be drawn sitting back in an armchair and just thinking about the function involved.

And there's some trouble in having such a vague line. It means you always need a lawsuit before you can decide whether there's a lawsuit. And the judge is to some extent placed at risk all the time.

MS. KAPLAN: I think that as the reasoning of the Seventh Circuit is applied, that the line is going to become rather clear. A judge will have a limited number of employees.

QUESTION: Depends on how you use your secretary as your response to Justice Stevens just indicated.

MS. KAPLAN: Yes, again. But to just call someone a secretary if in fact what they're doing is the work of a paralegal, I think that they are not going to be a great number.

QUESTION: Yes, but I think you've overlooked a point Justice Scalia just made. I'm the defendant. I file an affidavit and I say my secretary did all this stuff. The secretary comes out, I never did any of that. You'd have to have a trial to decide what she really did. And then don't you defeat the purpose of the absolute immunity is to free the judge of the necessity of defending the law suit.

MS. KAPLAN: I think that in most cases, Your Honor, a very limited inquiry based on the kind of job description of the individual should be sufficient. It's obviously not going to be workable if there's going to become an inquiry where every individual's going to say well I did this and I did this and the reason that this particular individual didn't do anything further was that the judge didn't trust that individual in the first place.

I believe that is getting more complex than would serve the purposes of immunity. But I don't think that means a line absolutely cannot be drawn. And to the extent that a line has to be explored, I think that it should be explored on the basis of what type of individual is serving the judge in a judicial capacity. I don't think that is going to create a huge number of lawsuits in order to isolate the kinds of tasks that are involved. And I think that certainly it's worth the trouble for the courts to engage in that function.

A judicial process is being served, and that's how a judicial act is identified. As in Stump, that was a judicial act. This Court noted that the issuance of a warrant, even when there's no case pending, and there may never be a case pending, that also is a judicial act. Jurors have derivative judicial immunity because of the way they engage in the judicial process, their participation in the judicial process, witnesses have judicial immunity because of their participation in the judicial process. And indeed, as this Court observed, probation officers have often been granted absolute immunity because of their substantive contributions to the process.

QUESTION: You mean probation officers have been granted absolute immunity as against a suit by disappointed prisoners?

MS. KAPLAN: Yes, Your Honor, that is what I mean.

And this type of function is what I believe the Court needs to look at. This Court has not addressed many circumstances where personnel decisions are at issue. In Nixon v. Fitzgerald, I recognize that was a very particular situation.

In Davis v. Passman, a minority of this Court did recognize that an employee who assisted a legislator that those duties were bound up with the function of the legislator. And that kind of analysis has been examined in depth by the First Circuit Court of Appeals and by the District of Columbia Circuit Court of Appeals. And the reasoning that I'm urging this Court today is reasoning that can be found in the decisions of those Courts, and I think it's very persuasive reasoning.

In Agromayer v. Colberg, the First Circuit considered a situation where an individual had applied for a position as a press officer with the Puerto Rican House of Representatives. The District Court, in that case, in evaluating the claim of the individual who was refused the position, did apply the kind of bright line test that is being urged by the petitioner today. And it said, well, hiring or firing, that's administrative, there's no immunity.

But the Court of Appeals examined the situation and felt that that kind of evaluation was too narrow, because to the extent that a particular employee was considered essential to the legislative process, then his qualifications and his selection ought also to be considered essential to the legislative process.

In Browning v. Clerk, U.S. House of Representatives, the District of Columbia Circuit Court echoed similar reasoning. There, a lawsuit was brought by an official reporter who had been fired by the House of Representatives. And the Court recognized that the ultimate issue before it was not the personnel act involved, but rather the issue was the duties of that employee. And if the duties implicated speech or debate concerns, then personnel action ought to be found to implicate the same concerns.

I think that that analysis is equally useful in evaluating a claim of judicial immunity for a personnel decision. If a probation officer's duties are -- and I submit that they are -- an integral part of the judicial process, then a personnel decision regarding that employee ought also --

QUESTION: Ms. Kaplan, excuse me for interrupting again, but your opponent relies heavily on Ex Parte Virginia. The selection of jurors for racially impermissible grounds by a judge. Why is the selection of jurors different than the selection of probation officers?

MS. KAPLAN: In Ex Parte Virginia, the Court ruled on two alternative bases, and this Court has since recognized that it did not hold necessarily that a ministerial act was involved, but that if the act were ministerial or judicial, nonetheless, the judge in question could be held liable under the criminal civil rights laws. The Court in evaluating and in hypothesizing that the act was ministerial stated that because the act of selecting jurors could be performed by anyone, it admitted of no judicial discretion. Whether that would be held the same way, whether the same discussion would apply today as far as the selection of jurors, I do not know. But I don't believe that the selection and the contributions of the probation officer are indeed ministerial. I believe that the work that the probation officer does is substantive.

QUESTION: The work of a juror certainly is not ministerial.

MS. KAPLAN: I would agree with that, Your Honor. However, at the time, the qualifications of a juror and the performance of a juror, I don't believe were inquired into in the same manner that they are today, and I don't know that the Court would indeed find that the selections of jurors was a nondiscretionary task today. And of course the Court in Ex Parte Virginia did not specifically so hold.

The point is that if --

QUESTION: The point is that it didn't look into what jurors do. It looked into how jurors are selected. I mean, its whole point of departure was not to say, what do jurors do in order to determine whether the selection of them or the firing of them, or anything else constitutes a judicial act. What it looked to is there any judicial discretion in the selecting of them. If we applied that test here, there's no distinctively judicial discretion involved.

MS. KAPLAN: Well, Your Honor, I believe that there is discretion involved, that is, to the extent that a judge must use his own judicial skills in evaluating the work of the employee that he has selected to help engage in those skills. Again, the Ex Parte Virginia case was not a case involving a civil action. It was not decided on the basis of whether this was a judicial act or not. It was decided on the basis of the Judge's liability to criminal law.

I believe that in a situation like this, a judge ought to be allowed to have the freedom to exercise his particular training and his particular skills in order to evaluate the kind of assistant that he is going to have to assist him in executing those skills. Certainly, that is the same position that I've been advocating that has been followed in cases of legislative immunity. And it only applies when the individual in question is engaged in the particular functions that are the functions of the official whom the immunity protects.

QUESTION: You think it makes any difference that in the case of legislators, there's the speech and debate clause which expressly provides privilege in the Constitution, whereas the immunity for judges is judicially created?

MS. KAPLAN: No, Your Honor, I do not.

First of all, the analysis that has been applied for legislative immunity has been applied equally to State legislators who are not protected by the speech or debate clause, and to Federal legislators. But I particularly would point out that this Court's observation in Nixon v. Fitzgerald that the source of the immunity is not so controlling as the nature and the reasons of the immunity. And I think that there's a very good analogy to be drawn in looking at the language used to describe the function and the extent of legislative immunity that parallels quite closely the language used to describe the purpose and the extent of judicial immunity.

I think the parallels there are very apt. Legislative immunity exists to protect the due functioning of the legislative process, and it only extends so far as is necessary to protect those functions. Judicial immunity has the same sort of reasoning. It exists only insofar as necessary to protect the judicial process, and those particular functions that are identified as a part of the judicial process.

I'm asking the Court to recognize that in personnel questions, there is more than just a --

QUESTION: What about the executive process? Why isn't there any absolute executive immunity, or is there? Do we have some somewhere?

MS. KAPLAN: This Court did hold that there was absolute immunity in Nixon v. Fitzgerald for the President.

QUESTION: Anybody else?

MS. KAPLAN: And it did not decide whether his assistants in Harlow v. Fitzgerald might be entitled to absolute immunity for the same sort of decision. The case was remanded for that purpose.

QUESTION: But certainly not a cabinet secretary?

MS. KAPLAN: That's correct, Your Honor.

And the distinction has been made on the basis of the kinds of discretion that are executed. And for a judge, the discretion is very wide. His sentencing decisions certainly --

QUESTION: Wider than a cabinet secretary's?

MS. KAPLAN: This Court I believe has so held, Your Honor, yes, that the judicial --

QUESTION: Don't you think it has more to do, as Judge Posner's dissent suggested, that if there is a distinction between let's say a cabinet secretary and a judge, that what it comes to is a judge is more likely to be sued by a litigant than a cabinet secretary, personally, you know, to be sued personally for alleged malfeasance than a cabinet secretary is? That the judicial function is much more likely to be gutted by litigation than is the executive function?

MS. KAPLAN: I agree that that is one reason for immunity, yes, Your Honor. Another reason is the exercise of the kind of discretion and the policy decisions that have been traditionally made in favor of protecting the judicial process from this kind of interference. It's that kind of policy decision that I believe applies in this case as well as to a litigant, and I would recall that this Court's earliest decisions based upon judicial immunity were not issued because a judge had been sued by a disappointed litigant. Rather, they were issued where a judge had disbarred an attorney, stricken an attorney from the rolls of court.

It's a different kind of situation, and I suggest that the rationale there, although the Court did discuss the cases of disappointed litigants, the true rationale is the protection of the judicial process by enabling a court to have this authority over the appointment and the removal of these officers of the court.

A probation officer is also an officer of the court. And I think that the decisions made with regard to the probation officer ought also to be recognized as judicial decisions.

Your Honors, in these days where judicial case loads are increasing and a judge must increasingly rely on the substantive aid of his assistants, such as a probation officer, I believe that a judge is entitled to absolute judicial immunity for his acts, and I would ask this Court to affirm the judgment of the Seventh Circuit Court of Appeals.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Kaplan.

Ms. Sedey, you have eight minutes remaining.

ORAL ARGUMENT OF MARY ANNE SEDEY, ESQ. ON BEHALF OF PETITIONER - REBUTTAL

MS. SEDEY: Thank you.

I think it's important to remember that the threat which the Doctrine of Judicial Immunity was developed to protect judges against was in fact the threat of lawsuits against judges by litigants who were dissatisfied with the outcome of a case or a controversy that that judge was deciding. And basically, there are two reasons why the common law wanted to protect judges against that kind of threat; one was to assure that judges would feel safe making principled, independent judicial decisions, free of the threat of that kind of litigation by parties who were dissatisfied with the result in their cases; and in addition, to protect final judgments from collateral attack, again, collateral attack by litigants who were dissatisfied with the outcome of the cases that were before the judge for adjudication, for decision.

Judicial immunity is an absolute immunity. Most governmental officials have only a qualified immunity and it is the function that judges uniquely carry out in this system of adjudicating cases or controversies and the threat which is unique to judges of litigation by litigants unhappy with the determination of their cases which justifies the granting of judicial immunity.

The decisions of this Court in all the absolute immunity cases have adopted a functional approach to absolute immunities. Only where there's some special function, some unique function that requires protection is absolute immunity extended. And only when the governmental official who is protected by absolute immunity is engaged in that function is judicial immunity a bar to suit.

The protection extends no farther than the justification that warrants the absolute immunity. Since it is the adjudicatory function which is the function to be protected by the Doctrine of Judicial Immunity, adjudication of disputes is the thing that judges do which must be protected.

They are similar to any other governmental official in hiring, firing, disciplining, assigning work to employees. Those are administrative acts. All governmental officials are required to carry out those kinds of acts. As an administrator, a judge is required to carry out those acts. There's nothing unique about the judicial function that makes a judge any more likely to be sued say for employment discrimination, than any other governmental official.

QUESTION: Do you think you could have gotten an injunction for reinstatement here?

MS. SEDEY: We requested reinstatement in this case, Justice White. And the trial court denied reinstatement.

QUESTION: Just for lack of equity, I suppose.

MS. SEDEY: That's correct. And in fact, Cynthia Forrester is like many judicial employees that really her only remedy is going to be damages.

QUESTION: Suppose there had been a reinstatement with back pay. Would the $86,000 equal the back pay? Or what was your measure of damages?

MS. SEDEY: The back pay was approximately $26,000. There were some additional amounts for the costs of seeking employment and compensation for humiliation, embarrassment, pain and suffering. But those were the elements.

QUESTION: And the jury awarded the damages, I take it?

MS. SEDEY: That is correct.

QUESTION: And is there any provision for the judge to be reimbursed by the state or by the county or?

MS. SEDEY: In fact, there is an indemnification statute in Illinois and Judge White would never have paid one penny of that monetary award. The State of Illinois would have paid that award.

QUESTION: Well, so you think the situation is just as though the State said, well we know there's a policy about immunity that the Supreme Court will protect our State officers, but we don't want protection for our State officers, for our Judges. If they commit Constitutional violations, it should be stopped, and we will let judgment be entered against them, but we will pay them, we will pay the damages?

MS. SEDEY: A State could make that choice to not indemnify judges against these kinds of suits.

QUESTION: Yes, yes. They could say, let them pay. Or they could say, let judgment be entered, but we'll pay.

MS. SEDEY: That's correct.

QUESTION: Which is what you think should be the case here?

MS. SEDEY: That's correct.

And I think one important point to recall is that Congress decided to create this remedy under 1983. And no decision of this Court has ever suggested that Congress did not intend for judges to be subject to suit under 1983. The most this Court has ever said is that when Congress passed 1983, it did not intend to abrogate the common law doctrine of judicial immunity as it existed at the time the statute was passed. And clearly, the common law Doctrine of Judicial Immunity did not anticipate barring suits by employees for employment discrimination.

QUESTION: I hate to get on this point, but 1983 didn't apply to women.

MS. SEDEY: 1983 provides a general remedy for various kinds of violations of constitutional rights and this Court has certainly found in the interim that 1983 can be used to attack sex discrimination in employment.

QUESTION: Just out of curiosity, does Illinois provide indemnification for any of its other public officials, or just judges?

MS. SEDEY: Yes. There is an indemnification statute that's much broader than just judges.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Sedey.

The case is submitted.

(Whereupon, at 11:48 a.m., the case in the above-entitled matter was submitted.)