Transcript

IN THE SUPREME COURT OF THE UNITED STATES

JEFFERY ANTOINE, Petitioner v. BYERS & ANDERSON, INC., ET AL.

No. 91-7604

March 30, 1993

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 p.m.

APPEARANCES:

M. MARGARET McKEOWN, ESQ., Seattle, Washington; on behalf of the Petitioner.

WILLIAM P. FITE, ESQ., Seattle, Washington; on behalf of the Respondents.

PROCEEDINGS

12:59 p.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 91-7604, Jeffery Antoine v. Byers & Anderson.

Ms. McKeown.

ORAL ARGUMENT OF M. MARGARET McKEOWN ON BEHALF OF THE PETITIONER

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

The issue before you is whether a court reporter who fails to produce a transcript is entitled to absolute judicial immunity, thus overcoming the presumption of qualified immunity which has been found to be sufficient protection for the vast majority of public and Government officials, ranging from presidential aides to the attorney general, other cabinet officers, governors, police officers, and school board members.

We submit that the Ninth Circuit ruling, that the doctrine of judicial immunity bars Mr. Antoine's suit simply because the court reporter is part and parcel of the judicial process, expands the immunity doctrine beyond the Court's decisions and certainly far beyond its historical scope.

The case comes here in a situation where over 3-year period the court reporter ignored numerous court orders, failed to file the transcript, and, in fact, violated show cause orders from the Ninth Circuit. Finally, after 3 years, she was unable to produce a complete transcript and a substitute reporter was able to file a reconstructed transcript which was admittedly deficient.

We ask the Court to rule that a court reporter's function is not adjudicatory, it is not a judicial function, and she is not entitled to absolute immunity from suit for damages. The circuits are split on this issue, but the answer can be found in the Court's cases on judicial immunity.

The starting point in the immunity analysis is that the presumption is that there is qualified immunity. So here it's not a question of absolute immunity or nothing, but rather starting with a presumption of qualified immunity. And because absolute immunity must be granted so sparingly and has generally been regarded as such an extreme measure, there is a very heavy burden on the respondents to justify elevation from qualified to absolute immunity.

No justification exists here. Certainly, the court reporter doesn't serve a function so special or so sensitive as to require a total shield from liability. Nor is the real purpose of judicial immunity, that is preservation of independent decision making, preventing the chilling of making hard and difficult decisions, served in this particular case because, of course, the court reporter makes no such decisions and has no such discretion to chill.

I would like to turn, then, to a discussion of a judicial act and adjudication. The threshold question --

QUESTION: Well, may I interrupt you? Do you suppose that a judge would have absolute immunity in certifying a case record for appellate review, for example?

MS. McKEOWN: Yes. I believe that a judge certifying a record for appellate review is acting in his judicial capacity. That is a function normally performed by the judge, and that really is an extension -- we're assuming a trial judge -- of the decision-making process in which the judge has engaged on the trial level.

QUESTION: Although you could certainly say that's a ministerial sort of act, couldn't you? What if the trial judge kept notes during that proceedings that became relevant on appeal and they had to be sent up, do you suppose that's part of the judicial act?

MS. McKEOWN: Let me answer your first question, and that is whether this judge's certification might be deemed to be ministerial. And it might; there is not an absolute line that can always be drawn. But certainly in the case of a judge, one needs to look to the scope of judge's authority, and it's a fairly broad decision-making authority, in contrast to the very limited authority of the court reporter.

Taking your second situation, and that is assume that the judge makes notes during the process and those are used in some fashion on appeal, it would appear that those notes would be made as part of the decision-making process, not as a part of recording simply a verbatim transcript of what went on in the courtroom.

So there's a far bigger distinction there between the note taking by the judge, which might be akin to historical note taking by the judge in which he had absolute immunity and was taking notes so that he could comment on the evidence and summarize matters for the jury. But surely a court reporter is not taking notes as a part of the decision-making process, but rather simply pursuant to statute and court order.

QUESTION: Suppose the judge --

QUESTION: So -- excuse me.

QUESTION: Suppose the judge knowingly keeps on an inept court reporter who's always late, is having health problems, et cetera, and two or three transcripts are delayed or lost, can the judge be sued?

MS. McKEOWN: In that particular situation, that would come somewhat close to Forrester, of a hiring and firing decision which may be an administrative act rather than a judicial act by the judge.

QUESTION: Does it --

MS. McKEOWN: But in any event, there would be qualified immunity.

QUESTION: Ms. McKeown, I can't hear you like that.

MS. McKEOWN: Yes. In any event, there would be qualified immunity in that case, and it may well be that the decision, albeit not an adjudicative one, would not be subject to suit because there was qualified immunity.

QUESTION: Well, what would be -- is there any potential judicial liability simply by virtue of the fact that the reporter may be held liable? Are we talking about a respondeat superior here?

Because I would suppose -- for example, in Justice Kennedy's case, I mean he's posing an example in which the judge's decision is a decision which is made on the administrative rather than the adjudicative side of the dichotomy in his duties, so that if the -- if the reporter is negligent and the judge was negligent in keeping the reporter on, I assume there's going to be -- could there be respondeat superior negligence here?

MS. McKEOWN: If it's determined that the judge's conduct was adjudicative in nature, then there would be absolute immunity and you would not reach the respondeat superior.

QUESTION: Well, if it wasn't. I mean what if the judge simply has an incompetent court reporter and keeps the incompetent court reporter on, and the reporter then causes damages? Is the judge going to be liable, A, for his own negligence, or -- and B, would the judge, in any event, be liable on a respondeat superior theory?

MS. McKEOWN: As to whether the judge would be liable in negligence, most likely if the judge is given qualified immunity, then the judge's, in effect, good faith and following his own procedures would exempt him from liability.

QUESTION: But what if he knows that he's got a incompetent there and he's -- he's a kind person, he doesn't want to fire this person, and just keeps the incompetent reporter on? He doesn't have any reason to believe that the law gives him a privilege to inflict incompetent reporters on the parties, so there's not going to be any good faith defense, is there?

MS. McKEOWN: If there is not a -- sufficient evidence to meet the qualified immunity test, it may also be that there's no cause of action because, generally, civil rights claims based solely on negligence would not rise to the level of stating a claim under Bivens or section 1983.

QUESTION: Well, how about State law?

QUESTION: Yeah.

MS. McKEOWN: There would be a State law -- there would be a potential negligence claim under State law.

QUESTION: Do you think qualified immunity would be of much use to a reporter?

MS. McKEOWN: Would qualified immunity be of use to a reporter?

QUESTION: Yeah.

MS. McKEOWN: As a practical matter, yes, because --

QUESTION: Why, why? What does -- what's qualified -- how do you overcome -- how do you overcome qualified immunity?

MS. McKEOWN: From the cases that have been brought against --

QUESTION: Would you think the reporter would have some doubt about what his or her duties were?

MS. McKEOWN: Well, there's -- there's various cases which have been brought where the court reporters have been granted qualified immunity. For example, simply following the judge's instructions.

QUESTION: Well I think -- I didn't ask you whether they were entitled to qualified immunity. I think they are. But I wonder what good it will do them.

MS. McKEOWN: Well, I think it would do them good because there are circumstances in which I believe they would meet the qualified immunity test.

QUESTION: Like -- like what?

MS. McKEOWN: A good example would be where the judge, perhaps as part of his decision-making process, has a vendetta against a particular litigant, but gives the court reporter an order, for example, don't produce the transcript for 6 months. There it would appear the court reporter, following the duties that is given to her by the judge, would be able to avail herself of qualified immunity.

QUESTION: Well, it may be, but it would seem to me to be -- it would be the odd circumstance where qualified immunity would be -- would do much good. But nevertheless, I would think the reporters would win an awful lot of cases because of -- you know, they just -- they just haven't broken the State law or they certainly haven't stated a cause of action for a civil rights violation.

QUESTION: Do we know that they would have qualified immunity under State law for a State negligence action? I mean our cases have all involved constitutional claims under 1983, right?

MS. McKEOWN: That's correct. There -- there are --

QUESTION: Have we ever said that you must give a reporter, or anybody, any Government officer, qualified immunity under State law?

MS. McKEOWN: Well, it would appear under the Westfall decision that the immunity analysis should end up the same whether a Federal cause of action or a State cause of action, certainly against a Federal official. There are some circumstances where States have their own immunity statutes, and in some of those they even implicate court reporters, for example, and they do have immunity under their State law provisions.

QUESTION: Yeah, but what -- what it's meant in connection with the Federal causes of action, which are all constitutional causes of action, has been simply that it has to be, you know, violation of a known constitutional right, intentional violation of a known constitutional right. That makes a lot of sense when you're applying it in a constitutional context, but how do you -- how do you translate that into a State tort action for negligence of a -- of a court reporter, not claiming any violation of constitutional rights, just negligence causing me to lose my appeal?

QUESTION: Suppose we said a court reporter has absolute immunity from suit and the court reporter -- I mean in a Federal court. In a Federal court a Federal officer has absolute immunity, and the court reporter gets sued in a State court under State law, and absolute immunity wouldn't be any use to them.

MS. McKEOWN: If it's a State court reporter being sued.

QUESTION: No, no. Federal court reporter getting sued just like anybody else, under -- for negligence or for anything else.

MS. McKEOWN: I think that --

QUESTION: Wouldn't they be absolutely immune --

MS. McKEOWN: If --

QUESTION: -- If we granted absolute immunity?

MS. McKEOWN: That's correct. If you granted --

QUESTION: And similarly, qualified immunity?

MS. McKEOWN: That's correct. And -- and getting back to Justice Scalia's question, what would be the test if you had the Federal reporter but sued under State law, it would seem to me that the courts would fashion a test which would be similar to the constitutional-type test, that is whether she was following out her duties and was able to proceed in an expeditious and appropriate fashion under either the statute or rule.

QUESTION: Yeah. Of course, we developed the other test because we thought it was a fair interpretation of what Congress intended in the congressional statute allowing suit. That's how we came to that, and I guess in Bivens' action we just imitate that, but basically it was based upon a congressional intent. And I guess we'd just be making it up for the -- or I don't know, some congressional common -- some Federal common law principle that requires this to be applied in State causes of action. I don't know. It's just a new question to me.

QUESTION: Well, you -- we've announced that a Federal -- certain Federal officers, wholly aside from any statute are -- have either absolute or qualified immunity. How about the prosecutor, Federal prosecutor?

MS. McKEOWN: Well, under the -- this Court's rulings, the Federal prosecutor, acting in a prosecutorial capacity, has absolute immunity.

QUESTION: Is that based on the statute?

MS. McKEOWN: No, that is -- that is based on common law, as well as looking at the --

QUESTION: How about judicial immunity?

MS. McKEOWN: Judicial immunity is based essentially on the common law rather than statute or Constitution.

QUESTION: Yeah.

MS. McKEOWN: And that is essentially extended with respect to the prosecutor.

QUESTION: Yes.

MS. McKEOWN: Because the prosecutor plays that role. And that is exactly -- that prosecutorial issue really frames why judicial immunity has been granted, because the purpose there is to protect the independent decision making, it is to protect the actual adjudicative process. So the prosecutor, like witnesses or jurors, acts in an equivalent role to the judge in considering, weighing, and making presentations in evidence.

QUESTION: Would you help me out on one thing about this case? I'm a little rusty on just how it arose and all. This is a suit brought in Federal court against a court reporter who was involved in a Federal trial, by a defendant in a Federal trial, so it's a Federal immunity you're seeking. But is there not also -- was there not also a State lawsuit for breach of contract for not performing?

Now, are you claiming, or does the other side claim that there is -- that the Federal law provides the court reporter with immunity from a breach of contract action under State law as well?

MS. McKEOWN: Your recitation of the facts is exactly the procedure in which the case was brought. The case was brought pro se by Mr. Antoine. He had both what he called a 1983 claim, which was really a Bivens' claim --

QUESTION: Right.

MS. McKEOWN: -- And a State contract claim. The -- as I understand the respondents' position, it was that absolute immunity would bar either of those cases. But the court below, having decided that absolute immunity would take effect, essentially dismissed without prejudice his State cause -- State law cause of action.

QUESTION: So that if -- in other words, if he overpaid the court reporter, he paid her a couple hundred dollars more than he should have and sued to get his money back, she could just put it in her pocket and say I'm sorry, I'm absolutely immune?

MS. McKEOWN: We would disagree with that position, of course.

QUESTION: But that's -- you think that's, in effect, what was held here.

MS. McKEOWN: Yes.

QUESTION: Is she a Federal employee? I thought -- I thought she was independent contractor.

MS. McKEOWN: She's not a Federal employee. She is hired under an emergency court reporter act, because the court did not have a full-time court reporter at the time.

QUESTION: So she was an independent contractor.

MS. McKEOWN: That's correct.

QUESTION: And Bivens applies to independent contractors hired by the Government.

MS. McKEOWN: Yes. She is acting under color of State law, and in -- pursuant to --

QUESTION: Color of Federal law.

MS. McKEOWN: Federal law, excuse me.

QUESTION: Uh-hum.

MS. McKEOWN: Federal law and pursuant to Federal statute and pursuant to the authority of the Federal court.

QUESTION: I'm not sure I understood your answer to Justice Stevens' question with respect to the State law contract action. Did the -- did the court below purport -- did any Federal court below purport to -- no, let me strike that. Did the court of appeals purport to hold that there was absolute immunity with respect to the State contract action, or did the court of appeals, in effect, simply leave that to be adjudicated as a matter of State law if the claim was brought -- was refiled as a State law claim?

MS. McKEOWN: The latter because that issue --

QUESTION: Okay.

MS. McKEOWN: -- Was never presented to the Ninth Circuit.

QUESTION: So that the only issue before us is just Bivens immunity.

MS. McKEOWN: That's correct.

QUESTION: Yeah.

MS. McKEOWN: That's correct.

QUESTION: Ms. McKeown, do you know of any cases from the days when judges just to keep their own -- used to keep the record, used to compile the record? Do you know of any cases in which a judge was -- was sued for failure to compile the record properly?

MS. McKEOWN: I don't know of cases where the judge was sued for a failed -- failure to compile the record. There are cases involving writs of capital punishment where the judge's notes were used and needed in some equivalent to a king's appellate process, but I don't know of a case where the judge was sued in that context.

QUESTION: Uh-hum.

MS. McKEOWN: The best discussion of the judge's notes is found in the articles by Professor Langbein at Yale, and he discusses the function of the judge there as the notes really being part of the judge's decision making or adjudicatory process. And by way of historical --

QUESTION: When did he write that?

MS. McKEOWN: He wrote two different articles on -- I believe they're cited in our briefs, and I can reference them by date if you'd like me to.

QUESTION: That's all right. Never -- don't take the time to do that.

MS. McKEOWN: Thank you.

QUESTION: Was the conclusion in those articles that the notes themselves were actually shipped up to -- either to an appellate court or to the court sitting in a law term, if it was an old nisi prius judge, so that those notes actually functioned as the equivalent of today's verbatim transcript?

MS. McKEOWN: No, that -- that is not the conclusion that Professor Langbein drew. In fact, it's the opposite, it's that those notes were taken during the trial and then were used in the summing up process to the jury. The other function that those notes served was when the king would go back to the judge for a recommendation on -- in a capital case, to ask the judge to go back and look at his notes and make a recommendation as to what kind of sentence or a judgment ought to be passed.

So they were never used in the same function that we know today. And, of course, the notion of a verbatim transcript was not even mandatory in the Federal courts until 1944.

What we are suggesting is that the threshold question, when one is looking at judicial immunity, is whether their conduct is, in fact, judicial. And under Forrester's functional approach that's determined, of course, by the nature of the act, not the title. So simply because somebody is called court reporter doesn't mean that they are functioning as a judge or in a judicial context.

QUESTION: I'm just not sure where we left the colloquy with reference to the State action. What is your position? Let us assume that -- that we agree with you that there's qualified immunity and this action, then, goes to State court. I'm not quite sure how he calculates his damages. Is there qualified immunity there as a matter of Federal law?

MS. McKEOWN: If the Court were to rule that there's qualified immunity, we would argue that -- under Westfall, that that same immunity applies to the State law causes of action.

QUESTION: And what about a contact suit for overpayment?

MS. McKEOWN: Same. We would argue again that the qualified immunity would apply, that there would be no absolute immunity from suit.

QUESTION: Well, why -- why should a Federal employee, like the respondent in this case, have any sort of immunity granted by Federal law if it's a simple contract claim under the law of the State of Washington?

MS. McKEOWN: Well, there is some suggestion that there would be no immunity in such situations. And we would be willing, of course, to accept that rule. The concern is that given the court reporter obviously having some association with the judicial process, that there may be some reluctance to go that far. Our position, of course, ideally would be that she has no immunity because everything she does is totally ministerial and nonjudicial.

QUESTION: Yes, but one could disagree with you on that position so far as any claim based on Federal law against her, and perhaps any claim based -- based on a cognate State law. But a simple contract claim, hypothesized by Justice Stevens, where the defendant claims that he overpaid $200 for a transcript, it strikes me that whether the Federal law ought to impose on the State law system in immunity is quite debatable.

MS. McKEOWN: I would agree with that. And assuming, of course, no particular State statute, were this to go back to the State court, we would argue no immunity with respect, certainly, to the contract action. But that the only issue that comes before this Court, of course, is this particular Bivens Federal claim and what the immunity is with respect to that.

QUESTION: But not the tort action. You don't assert that there's no qualified immunity, whatever that means, with respect to a State tort action. You draw a distinction between a State tort action and a State contract action.

MS. McKEOWN: Well, I wouldn't draw that distinction. At this point in time I have to be candid that my client has not himself alleged a State tort action on -- there is an amended complaint that was pending, and the amendment was not granted because the case was dismissed.

In looking at what is a judicial act, the language in the partial concurrence in Burns v. Reed is really quite helpful, because there it was written that the touchstone of the application of judicial immunity is the function of resolving disputes between the parties, or that is authoritatively adjudicating private rights. So if you take the situation of what does the court reporter do and does she fall into that description, the answer has to be no.

The court reporter, of course, performs a stenographic function, produces a verbatim transcript according to very clear rules, and it's a skilled, but it's a ministerial function. The scope of that activity is hardly in any respect related to the notion of why we have judicial immunity.

The court reporter exercises no independent judgement, she performs none of the classic adjudicative functions such as evaluation of evidence, like the jury might do. She has no discretion over the rights of the parties and she does nothing that is really central to this truth seeking which is part of the justice system. The central characteristic, then, that is adjudication, is not present with the court reporter.

Secondly, you ask is it an act normally performed by the judge. And clearly in the system as we know it now, that is not part of the judge's normal function, that is to take a verbatim transcript. Nor could it be said that somehow the court reporter is the judge's alter ego or performs a function which is really comparable to a judge. I think that certainly would be a disservice to the judiciary, to suggest that court reporting is functionally comparable to judging.

And finally, of course, a necessary but not determinative point is to go back to the historical analysis. And since there were no court reporters at common law, and on that point I believe both parties are in agreement, the question is then asked was there any comparable function.

And the fact is that there wasn't. There really was nothing like a verbatim record at common law. The note taking was for judicial summing up. And even those court clerks who had transcripts, and that was basically just a listing of the pleadings, were entitled to no immunity because they were performing ministerial acts under the common law.

So with those principles in mind, I'd like to turn then to the Ninth Circuit decision and to suggest why that decision is wrong. Essentially, what the Ninth Circuit did was to grant absolute judicial immunity to anything which is part and parcel of the judicial process. But what that does, basically, is to ignore Forrester, and it really collapses the judicial immunity analysis into an unprecedented association with the judiciary. The test ought not to be where you sit but what you do.

Also, this would be a blanket extension of the notion of absolute judicial immunity to the entire judicial branch. And as we've learned from other cases such as Harlow, such an undifferentiated extension cannot be reconciled with the functional approach.

What it would do, of course, is to place the judiciary in a situation superior to the other two branches of Government. Just as the President's immunity cannot be extended in an undifferentiated fashion to his aides, neither can the judiciary's immunity be extended in an undifferentiated fashion to a court reporter. Or similarly, even in the legislative context from the Gravel case, legislative acts are not all encompassing.

Finally, what the Ninth Circuit also focused on was that this is a very important part of the overall administration of justice and the efficient administration of justice, and therefore there ought to be absolute immunity. And we would take issue with that because that fails to distinguish acts that are important to the judicial system from judicial acts.

The answer to that can best be found in the language of Forrester where the Court, talking about administrative acts, says that they might have been quite important in providing necessary conditions of a sound adjudicative system, but the decisions at issue were not themselves judicial or adjudicative.

The second prong of the Forrester test then asks to evaluate what impact would there be were one to grant qualified immunity to court reporters, and what impact would that have on the court reporters' performance of their duties.

Starting with a premise that qualified immunity is the rule, there's no real reason to place the court reporters in a preferred position above all those other officers mentioned earlier, such as law enforcement officials, presidential aides, who day after day face very difficult, important discretionary decisions, and yet are protected only by qualified immunity.

And also, the court reporter can hardly be said to fit within the short list of those functions to which this Court has granted absolute immunity: the judge, in the judge's judicial or legislative capacity; jurors, witnesses, and prosecutors taking part in a deliberative evidentiary hearing; the President or legislators and their aides acting as alter egos.

At this time, if the Court has no objection, I would like to reserve time for rebuttal.

QUESTION: Very well, Ms. McKeown.

Mr. Fite, we'll hear from you.

ORAL ARGUMENT OF WILLIAM P. FITE ON BEHALF OF THE RESPONDENTS

MR. FITE: Mr. Chief Justice, and may it please the Court:

I think the petitioner has stated accurately the facts of the case except on one point, and I think it's important in our decision -- or in your decision. And that is we know what did occur, but the factual inquiry as to why it occurred, the reason it occurred, we don't know. It was dismissed on a motion for summary judgment. All we know is the record was not produced. We don't know the why or the wherefore, nor have we proceeded through that discovery process.

Counsel has brought up what the issue before you is: whether there is absolute immunity. It seems to me that the general scope of the question before the Court is whether the judicial process is better off or worse off by granting the court reporter absolute immunity. And the respondent would ask the Court to consider I think three areas in addressing that problem or that question.

QUESTION: Why --

MR. FITE: Yes.

QUESTION: Is that how we decide this case, whatever we think is better? You know, I don't know. I mean certainly in the 1983 cases we purported to be deciding whether the immunity existed on the basis of whether it existed at common law at the time 1983 was adopted. And we've sort of carried the same immunities we find in 1983 over into Bivens, which we sort of created out of 1983. I'm not sure that I agree with your criteria, that whatever is better is.

MR. FITE: Addressing that question, I would need -- we think we need to take a look at the history of judicial immunity. You say do we need, in a sense, judicial immunity afforded to the court reporter?

My interpretation of the case is -- and this is founded in common law, is that judicial immunity essentially comes into play because we felt that judicial immunity had to be, otherwise the process of making decisions of the judicial process would be damaged, would not function as we want it to function. The question I see here for the Court to resolve, is it necessary to extend that immunity on to a court reporter to accomplish the same goal, and that is an effective judicial process.

So you say do -- do we need to extend it on, is it a policy decision? I think it's fair to say it is a policy decision in this respect, as I think that is how judicial immunity arrived. It was decided that we couldn't have collateral attack, we wouldn't have finality of judgments, wouldn't have an arbitrator that concluded matters if we didn't have that. So I think you do need to look at history in looking at -- at a court reporter's immunity.

QUESTION: Well, I thought judicial immunity had a long common law history.

MR. FITE: I believe it does.

QUESTION: And we don't have a common law analogue for court reporters, do we?

MR. FITE: We do not.

QUESTION: No.

MR. FITE: The reason -- excuse me.

QUESTION: What about a courtroom marshall or bailiff who acts with excessive force in subduing some obstreperous witness or --

MR. FITE: I don't see the rule needing to be extended in that situation. I think we're getting back to the question of -- quickly -- on court reporters not, under common law, being afforded immunity. I think that's answered historically. There were not court reporters in the sense we think of them until, I think, 1866, and then finally the Court Reporters Act in 1944.

QUESTION: Well, then why should we concoct some -- some absolute immunity principle here?

MR. FITE: Well, I think what we're saying is that there was immunity for that process. For the process of recording what went on in a courtroom there was immunity, because that immunity was afforded through judicial immunity.

The argument of respondent in this case is that the court reporter is part and parcel of that judicial process in the courtroom. That process up until, as best in the reading I've done on the history -- and I think the National Court Reporters Association did an excellent job of reviewing the history -- that process was taken care of by the judge.

And I think there was a question here earlier, what about judge's notes. I think the petitioner has diminished the role of those notes. I think they were very important, as my understanding is that the notes and so on were our ability to get to the appellate level with a record and have finality as to the factual issues of the case, so we get to the question of whether the judge complied with the law in making the decision.

And so I think correct -- we need to look at historically. I think you can't proceed to consider a court reporter's immunity without understanding that background of what those notes mean. And I think they mean that today. If you look at the court rules with regard to what the record is to consist of, it is still the judge's record.

The judge has the final say. The judge reconstructs a record that does not exist, as it was done in this case. The judge passes and -- on questions that rise about the record. Whether it be the trial court judge or the appellate court judge, that decision is made.

QUESTION: You mean if a -- if a question arises about the accuracy of the reporter's notes, the trial judge settles that and says yes, the witness said yes rather than no in answer to that question.

MR. FITE: My understanding, reading the rule, although I have never followed through the process -- well, I have followed through the process that the judge does make that decision. And my interpretation of the rule is yes, the judge has the final say in certifying that record to go to the court of appeals. If there remains a question, as I understand it the court of appeals then may have to resolve it.

I think the court rules says the judge will correct the record -- I don't think they use that word -- to be sure that it says the truth. I don't know where we would turn to get that record other than to the -- to the court, to the judge or to the court of appeals, to determine what the final record is.

As a practical matter -- and I think it's very important in this decision on the role of a court reporter -- if you have a question, say a transcript at the end of a day, and there's a yes and a no and you think it should be yes and the other party thinks it should be no, and you've gotten this transcript, you would say what happened, what is the record going to say, what words they said, and I think that role would fall to the judge to correct the record. The record is the court's record and the court is controlled by the trial judge.

QUESTION: May I ask you a historical question. I guess it's the same one I asked your opposing counsel. Do you have any historical evidence to the effect that the trial judge's notes were themselves transferred either to an appellate court or to a panel of his own court, if it was a nisi prius judge?

MR. FITE: The reading I've done, that specific statement is not made, but it's certainly implied from the historical events that occurred with regard to the appellate process. They talk about judge's notes, they talk about where does the record come from. The record, as I understand it, historically could come from literally whoever might assist in accumulating that record. Of course, the judge's notes were primary, but it could come from counsel, it could come from whatever source in order to establish what occurred at the trial.

QUESTION: Though you have a bystander's bill, don't you, authorized in some situations. A bystander's bill where they can't get a transcript and where you simply ask people who were in court to say what happened.

MR. FITE: Well I believe historically that has occurred. I think -- wasn't Charles Dickens, I believe, a court reporter or reported on trials at one time, and there was -- that sort of thing occurred. They were trying to find what they eventually found, and that was effective court reporters to do this job in a logical, sensible way, and with accuracy.

And with that ability -- and I guess it initially was the writing skills of a reporter, it now has become somewhat more mechanical. With that ability, we now can kind of say that record is accurate, it can be certified and we know and we can trust that record to be such.

The -- I think the -- addressing the question, it's also important to understand what the role of the court reporter is. I think we tend to accept the fact that a court reporter is there making a verbatim transcript, and I think the rules say a verbatim transcript and a record of proceedings.

But in the trial of a case a court reporter takes on something greater by far than just the task of recording what's done there. That's the mechanical part, but a court reporter in every sense, as I see it, is essentially the trial. Frequently in a trial, whether you're winning or losing, you may be more concerned that the court reporter hears you accurately, that the record reflects what goes on, than the court, than the judge.

A court reporter is put in a sensitive position in fulfilling that role, and I think one of the consequences is -- is to make that court reporter's role, that sensitive role of being assured that they are recording what happened fairly, accurately, with no bias, that -- the fact that there could be qualified immunity, questions of fact about that, I think would inhibit the court reporter in fulfilling that role.

QUESTION: Why is that? It seems to me there are two purposes to absolute immunity. One is simply to restrict what otherwise would be frequent lawsuits, so that the judge or whoever it is won't have to be in court all the time defending his or her actions. And the second is to be sure that in order to avoid lawsuits, the judge or whoever it is does not -- does not shrink from making the tough calls, the tough decisions, the jury from calling it the way the jury really saw it, or the judge from coming out against somebody who is a -- an habitual litigant and would sue anybody in sight.

I don't see how the second of these reasons, at least, applies to the court reporter. The first may, but maybe -- maybe qualified immunity is enough to take care of that.

MR. FITE: Where I see the -- and I think it's --

QUESTION: What decision would she likely shrink from taking, knowing that she would be subject to suit?

MR. FITE: Well I -- I can see that the court reporter -- have difficultly in shrinking from a decision on inquiry of counsel about what went on in the record, does the record show this or does the record show that.

There may be -- I don't think it's the most important reason for immunity, but I think there well could be that a court reporter with this litigious counsel on one side saying I hope you got that record right today when he said no or she said no and yes -- it may have an intimidation effect on the ability to sit back in an unbiased way, an independent way, and do the record.

But I don't think that's the most important part of this.

QUESTION: Well, you think it's a matter of judgment whether you hear yes or no. I mean that's not a matter of judgment. I mean anybody can be intimidated into lying. You can't prevent that by absolute immunity or not.

MR. FITE: Well --

QUESTION: But what judgment -- what judgmental calls does she have to make that might be swayed?

MR. FITE: A limited number.

QUESTION: Any?

MR. FITE: A limited number, but there are some.

QUESTION: Give me -- give me -- okay, what are they?

MR. FITE: I think if -- one, the role of a court reporter is, to me, one that is difficult to comprehend to be completed. You have counsel talking, you have witnesses, you have the court, and you have to, in some way, discriminate on what goes in that record. There is that type of discretionary act in court reporting. It's inherent in trying to accomplish that. If we ever come up with an ability to accomplish it without ever the possibility of error, without any -- everything being recorded, well then I guess we wouldn't be here because no -- no reporter would be sued.

QUESTION: Well, but that -- that's just a matter of being able not to hear everything at once. But if she heard everything at once, surely she should put it all down. If there were eight people that spoke at once and she could hear all eight, she'd have to write it down, wouldn't she?

Okay, so that's -- I don't consider that judgment. I consider that just a matter of hearing or not.

MR. FITE: Your Honor, I think you're right. I mean I can't say that everything that a --

QUESTION: Okay, so give me -- I can't think of one example of judgment, where she has to make a judgment that could be influenced by --

MR. FITE: Well, I think there is judgment in recording. You're right, if it's there, if it's not confused and it's not entwined with other things, that we know what is to go in the record, then it's merely a matter of writing it down.

QUESTION: But I thought --

MR. FITE: The perfect judge doesn't need a reporter, if somebody could record --

QUESTION: I thought your point, Mr. Fite, was that if there are eight people talking at once she can hear them all, but she doesn't have eight hands. She can't write everything down at once, and therefore she has to make a judgment about which things of those that she heard and can remember she can get on paper. I mean that happens sometimes, a court reporter with about six lawyers arguing at the same time, they can't get them all. And she must make a decision as among those, which one she's going to put down.

MR. FITE: Well, there's another element to that too. I agree with Your Honor. Another element is at times the court reporter needs to intrude into the process, needs to say stop, I didn't get it, I need to have you stop here. Now what -- said, and essentially defers to the court and the court, of course, stops the proceedings.

But even with that, what I think is the greatest danger flowing from failure to provide absolute immunity to a court reporter is that I think you create a question of fact, a question of fact that is going to embroil anybody in a courtroom. We didn't get into it yet in this case, but I can hardly think of a situation where somebody says the record is wrong that every player in that process, that judicial process, the courtroom, isn't potentially a fact witness: the judge, the jury, the witness, counsel, everybody else.

And if we start to get into a situation where there is the potential threat of that sort of factual inquiry, it seems to me you're going a long way towards defeating the purpose of judicial immunity.

QUESTION: Is there any reason to think, Mr. Fite, that this sort -- the particular kind of controversy you've described comes up often? I mean the lawsuit in this case, for instance, doesn't involve anything like that, as I understand it.

MR. FITE: We don't really know that it does or not in this case. But the question asked, Chief Justice, is will there be lawsuits from this. The petitioners take the position there haven't been many lawsuits, therefore what are we worried about. Court reporters generally do a good job; there isn't a flood of litigation on this.

I don't know. I don't know what the future would hold for sure, but I think there is the real threat that once the Supreme Court has spoken and every counsel who loses -- and generally one side or the other loses -- is going to have to consider -- in representing their client who is disgruntled by the fact they lost, going to have to consider as one of the potential causes of action a claim against court personnel, particularly the court reporter.

So whether that means --

QUESTION: For having truthfully reported something that damaged their client or for having inaccurately reported? I -- I mean I practiced law for 16 years in court before I left the private practice, and I can't remember a single instance where there was a great deal of controversy about a transcript.

MR. FITE: I can't either, and I've been a trial attorney for some years now, except in this situation -- except that we view it different than might -- it might be viewed depending on how the Court rules in this case.

At this time I think, one, it doesn't take anybody well versed in judicial immunity to go into the courtroom for the first time and realize we can't be suing the judge. It just won't work. I think that most trial counsel have looked at the court reporter that way. It's a team in a courtroom, and I think it's been -- people may be critical of a great deal of litigation.

In this case it was a pro se criminal defendant that brought the case, and I notice a number of those -- of the cases come that route. But if you talk to a trial attorney and say well the record doesn't look right, let's sue the court reporter, I don't think it was ever considered. I think they felt -- saw the judge and the court reporter as a team.

QUESTION: Well, Mr. Fite, isn't it true that if the record didn't look right and it had a material bearing on the outcome of the lawsuit, you're not going to sue the court reporter, you're going to get the record straightened out for your appeal. You have the -- the reason for getting the record straight exists whether you can sue the court reporter or not. If you have a bollixed up record that prevents the review from taking place, you have a reason to raise the issue and get into the very dispute you're talking about.

MR. FITE: Well, then that's correct. As long as we know when we end up with the truth. We have, as the record, says the truth.

QUESTION: When you end up with the best you can get out of the work that's done there.

MR. FITE: Well --

QUESTION: I don't think your normal recourse would be to sue the court reporter. As the Chief Justice suggested, if there's -- most of us have had good experience with court reporters, and if we hadn't, it seems to me we would have raised it as trying to straighten out the record in the -- in the case. If the witness answers yes and the court reporter writes down no, you -- you remember those things if it's an important question.

MR. FITE: I agree with that, and that's why the judge has -- is controlling of that record and says yes it was no, or yes it was. But -- or yes it was the other way. But it -- it seems to me it can fall into this sort of scenario of a lawsuit. The record's there, the judge has said it was yes, you believe it was no and you sue the court reporter saying you put it down wrong. He says well the judge said that it was yes; wait a minute, let me bring in a jury to testify about that.

QUESTION: Is the law settled on this subject in the State of Washington?

MR. FITE: I don't know if it is in that sense. There's judicial immunity, but I don't know of any case regarding the -- a court reporter immunity, either qualified or absolute.

QUESTION: Mr. Fite, I was under the impression when we took this case that there was a conflict below, that at least some jurisdictions have made it clear that you can sue a court reporter. And has the experience -- am I right in that?

MR. FITE: That's correct, only -- only --

QUESTION: Well, have they -- have they been flooded with litigation against court reporters, those jurisdictions?

MR. FITE: Not that I'm aware of in that sense.

QUESTION: Yeah, I'm not aware of it either.

MR. FITE: I don't know if that can be -- is really a factor in this decision.

QUESTION: You raised it, I didn't, I mean.

MR. FITE: But -- I don't know. I don't know that you can say it's a flood of litigation. But as I said earlier, the Supreme Court has not spoken on this and there is differences between the various circuits.

QUESTION: I'm not aware that people wait for us to speak before they file lawsuits if they think they're going to win in their State or in their -- in their circuit. I think there would have been a lot of litigation in those circuits that have held contrary to your view here.

MR. FITE: I'm not so sure that the amount of litigation is necessarily the criteria. If there is the potential threat, the creation of mistrust within the courtroom personnel, I think you have defeated to some degree the purpose of judicial immunity. Now, whether that's a few cases that come out or whether it's a floodgate of opening of cases, I don't know. But I do think that the dangers that flow from it are there whether there's few or many.

The three areas that I wanted to touch on, and I think they have been touched on in the questioning that have been posed, is, one, historical, that I think the court reporter's role is part of the historical duties and responsibilities of the judge. The other is the role of the court reporter, and I wanted, I felt in representing respondent in this case, to emphasize what the court reporter's role was in a trial, what it really meant in the day-to-day trial of a case.

And third, the consequences. And looking at the consequences would have been discussed, it seems to me that they are serious. And I don't think it has to do with how many cases are there. But once you open the door and start to allow factual inquiry, which may well happen in this case depending on the rule of the Court -- as once you open the door and say what went on in the courtroom with regard to the court reporter that is a factual question, then I think you are defeating judicial immunity.

QUESTION: If we find that there is qualified immunity, is there anything left in this case given the ruling that he was -- suffered no violation of his due process rights, no injury?

MR. FITE: The -- well, you raise a question, Your Honor, as to whether there remains a claim here, a cause of action. In a sense, it seems to me your addressing a question that's moot in this case. I think that argument could be made. The -- I think you could take that position.

Unless there are further questions, I have addressed the issues that I wanted to. Thank you.

QUESTION: Thank you, Mr. Fite.

Mc. McKeown, you have a minute left.

REBUTTAL ARGUMENT OF M. MARGARET McKEOWN ON BEHALF OF THE PETITIONER

MS. McKEOWN: Thank you. Let me address briefly the threat of litigation and then the historical issue. On the threat of litigation, there are four circuits which hold for qualified immunity and there are also district courts in three other circuits. The result has not been a flood of litigation.

We disagree with opposing counsel that there is some significant threat, and I would turn again back to Westfall where the Court noted that where conduct is not the product of independent threat, then the threat of liability cannot detrimentally inhibit that function.

Turning to the historical section, we are in disagreement that the judge's note taking was in any way comparable to what the court reporter does, and refer to the 1978 and 1983 articles of Professor Langbein. The appellate process, as we know it --

QUESTION: It was Professor Langbein of Chicago.

MS. McKEOWN: Yes.

QUESTION: At that time.

MS. McKEOWN: At that time, now moved to Yale, as I understand. But I believe a close reading of his discussion would support the position that we have taken in the brief. While I do not know of a case against a judge, I can refer the Court to Bates v. Foree.

CHIEF JUSTICE REHNQUIST: Thank you -- thank you, Ms. McKeown.

MS. McKEOWN: Thank you.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 1:52 p.m., the case in the above-entitled matter was submitted.)