Metropolitan News-Enterprise


Thursday, August 18, 2005


Page 1


Judicial Immunity Held No Defense to Suit for Battering Litigant


By KENNETH OFGANG, Staff Writer/Appellate Courts


A judicial officer accused of assaulting and battering a litigant does not have absolute immunity from liability, the Third District Court of Appeal ruled yesterday.

“A judge’s robe is not a king’s crown,” Justice Kathleen Butz wrote. “[Judicial imminty] was never intended to protect acts of thuggery against litigants merely because the assailant happens to be a judge.”

Reversing a contrary ruling by Placer Superior Court Judge Joseph O’Flaherty, the court reinstated Jerome Regan’s suit against David L. Price, a Roseville attorney who served as discovery referee in a case where Regan was plaintiff.

Regan alleged in his complaint that Price became embroiled during the litigation in a personality clash with Regan’s attorney, Robert Kingslan, who practices in the Placer County community of Granite Bay, and that Price had falsely accused Kingslan of stealing documents from a deposition.

Wanted Referee Out

As a result, Regan alleged, Kingslan drafted a letter notifying Price that he would be moving to remove the referee from the case, handing the letter to Price in Price’s office at the time of the next deposition scheduled in the case. When he and Kingslan turned to leave the room, Regan said, Price shut the door and blocked it with his body, but Kingslan forced it partially open and exited.

Regan, according to the complaint, then sought to follow his attorney out of the room, but Price—who is much younger than Regan—slammed the door against Regan. The plaintiff alleged that he suffered an injury to his shoulder and neck area, where he had previously had cancer surgery, and suffered emotional distress as well.

O’Flaherty sustained Price’s demurrer. Butz said the trial judge erred.

Judicial immunity, the justice acknowledged, extends to quasi-judicial officers such as discovery referees. But it does not extend to every act by a judge, Butz explained.

The justice rejected Price’s contention that his alleged conduct was privileged because its purpose was “”to preserve order in the proceedingto prevent a party from leaving a properly noticed deposition he was appoin ed to referee.” Only in “extraordinary cases,” the appellate jurist said, would a physical assault be considered part of the judicial function.

Case Cited

Butz cited Gregory v. Thompson, 500 F.2d 59 (1974), in which the Ninth U.S. Circuit Court of Appeals held that a justice of the peace who was accused of forcibly removing a man from his courtroom and physically assaulting him in a dispute over the person’s right—he was not a lawyer—to appear as advocate for a defendant accused of a traffic violation was not absolutely immune.

The court, while it recognized the judicial duty to maintain order, concluded that the actual eviction of someone from the courtroom by use of physical force, a task normally performed by a sheriff or bailiff, was “simply not an act of a judicial nature.” The use of physical force, the court noted, “is not amenable to appellate correction.”

Butz distinguished  Mireles v. Waco (1991) 502†U.S. 9, and rejected the contention that the case overruled Gregory.

The high court case held that Howard Waco, a Los Angeles deputy public defender, could not sue Raymond Mireles, a since-retired Los Angeles Superior Court judge, for having allegedly ordered bailiffs to seize Waco and physically bring him to the judge’s courtroom.

Butz explained:

“The key difference between Gregory and Mireles is that in the former case, the judge stepped away from the bench (and out of his judicial role) by physically attacking the plaintiff, whereas in the latter the judge exercised his recognized judicial authority to direct court personnel to escort an absent attorney into the courtroom.”

Price, she said, would have been immune had he summoned an officer to prevent Regan and Kingslan from leaving the room. The fact that he did not have a bailiff to perform that function, the justice said in a footnote, did not give him the right “to use self-help to keep the litigants inside the deposition room.”

The case is Regan v. Price, C047980.


Copyright 2005, Metropolitan News Company