Is the Judge Immune If They Act Without Jurisdiction?

Judges cannot generally be sued for damages over their decisions. That much is widely known. Less widely known, but frequently repeated in popular legal writing, is the exception: a judge who acts without jurisdiction loses immunity. On some accounts, any judge who proceeds after a jurisdictional challenge, or who makes a legal error, has acted without jurisdiction and can be sued personally.

The exception is real. It has been part of the doctrine since its foundational case in 1871. But its scope depends entirely on a distinction the Supreme Court drew carefully, between acting in excess of jurisdiction and acting in the clear absence of all jurisdiction, and on a second requirement, that the act be judicial at all.

Bradley v. Fisher

The doctrine's American foundation is Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). The plaintiff, Bradley, was one of the lawyers defending John Surratt, tried in 1867 in the Criminal Court of the District of Columbia for the murder of Abraham Lincoln. Justice Fisher presided. After the jury failed to agree, Fisher ordered Bradley's name struck from the roll of attorneys, reciting that Bradley had confronted and threatened him during a recess. Bradley sued Fisher for damages.

The Court, in an opinion by Justice Field, held that the suit could not proceed. If the order was a judicial act, done by a judge of a court of general criminal jurisdiction, the judge "cannot be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." The rule existed for the public's benefit: "a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself."

The Court then drew the distinction on which everything turns. Judges of courts of superior or general jurisdiction are not liable for judicial acts, "even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." But "a distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible."

The Court's own illustrations

Bradley gave two examples that remain the clearest guide to what the distinction means. If "a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences," jurisdiction over criminal matters "being entirely wanting in the court, and this being necessarily known to its judge," the judge's commission "would afford no protection to him."

But if "a judge of a criminal court, invested with general criminal jurisdiction," should treat as an offense an act that is not one, "and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law," the judge would not be liable, "although those acts would be in excess of his jurisdiction," because "these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked."

The examples show how narrow the exception is. Convicting someone of a non-crime, or imposing an unlawful sentence, are serious errors, and they exceed the court's lawful authority. Yet the Court classified them as excess of jurisdiction, protected by immunity. Only a court with no authority whatever over the subject, acting with knowledge of that fact, falls outside.

Stump v. Sparkman

The Court reaffirmed and arguably extended that reading in Stump v. Sparkman, 435 U.S. 349 (1978). An Indiana circuit judge approved, on the day it was presented, a mother's petition to have her fifteen-year-old daughter sterilized. There was no docket number, no notice to the girl, no hearing and no appointed guardian; she was told she was having her appendix removed. Years later, married and unable to conceive, she sued the judge.

The Court, in an opinion by Justice White, held the judge immune. It stated that "the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge," and that "a judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.'" Because Indiana circuit courts had broad general jurisdiction, including over minors' affairs, and no statute or case clearly prohibited the court from considering such a petition, there was no clear absence of all jurisdiction.

The Court also defined a "judicial act" by "the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity." It held that the informality of the proceeding did not make the approval nonjudicial.

Justice Stewart, joined by Justices Marshall and Powell, dissented, arguing that what the judge did "was beyond the pale of anything that could sensibly be called a judicial act." Justice Powell also wrote separately. The dissent shows that the doctrine's application can be sharply contested even among Justices who accept its premises.

The two exceptions, stated together

The Court summarized the doctrine in Mireles v. Waco, 502 U.S. 9 (1991). A California judge allegedly ordered officers to bring a lawyer into his courtroom "with excessive force." The Court held the judge immune and stated that immunity "is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." It added: "If judicial immunity means anything, it means that a judge 'will not be deprived of immunity because the action he took was in error ... or was in excess of his authority.'"

The first exception has real content. In Forrester v. White, 484 U.S. 219 (1988), a state judge who demoted and dismissed a probation officer was held not absolutely immune for that decision, because employment decisions are administrative rather than judicial. The Court noted that it had long ago declined to extend immunity to a judge criminally charged with racial discrimination in selecting jurors, an administrative function.

What immunity does and does not mean

Several points are commonly confused.

Immunity does not mean the act was lawful. It means only that the judge cannot be made to pay damages for it. A judgment entered without jurisdiction may still be void, and erroneous rulings may be reversed on appeal.

Malice does not defeat it. Bradley, Stump and Mireles all say so, and the Court explained in Pierson v. Ray, 386 U.S. 547 (1967), that immunity "is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public." Pierson also held that 42 U.S.C. §1983 did not abolish judicial immunity.

It is not qualified immunity. Judicial immunity is absolute for judicial acts within jurisdiction. Qualified immunity, which protects many other officials, depends on whether the official violated clearly established law. Pierson itself applied different rules to the judge and to the police officers in the same case. The archive's entry on Bivens concerns suits against federal officers generally, a separate body of law.

It concerns damages. In Pulliam v. Allen, 466 U.S. 522 (1984), the Court held that "judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity." Congress responded in 1996 by amending §1983 to provide that in such actions "injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

What the record supports

A judge acting without jurisdiction can lose immunity, as the popular account says. But the record defines that exception narrowly: it requires a clear absence of all jurisdiction over the subject matter, not error, excess of authority or a disputed jurisdictional ruling, and the Supreme Court has construed jurisdiction broadly for this purpose. The other exception, for nonjudicial acts, turns on the function performed rather than on its correctness or motive. Immunity bars damages; it does not validate the act, prevent appeal or, under current law, foreclose all other relief.