William J. Bauers, Jr. v. Herbert T. Heisel, Jr

entry pleas requested, and, noted, allow already possible, that subse- by guilty trials. followed deprive not to be quent them of can events advantage judgments and change the criminal plea is not In the event a by were Federal court accomplish commitments aim asked, the could court confer, un- i. e. that service enlarging intended to by of concurrent sentences credited der the would be sentences State appellants the State con- until on bail Nevertheless, terms. on the Federal reviewed, finally and then victions are opinion detentions here our Federal judgments. appropriate If pass altogether valid. disturbed, sentences are State imposition Judge suspend District could provision for concurrent order to avoid or execution of sentence permissible service under multiple detentions under or consecutive law, Federal 4082. 18 U.S.C. It If the laws. State the Federal and State designation by effect a the Court of Judge vacated, District sentences are place confinement, matter confided then determine whether sen- by exclusively the statute to the discre passed tences should be view Attorney stipu tion of the General. The prosecutions, passed, whether State or if service, therefore, lation for concurrent length or of them should conditions ignored surplusage must be pro- reflect a State consideration 5-year sentence held unaffected ceedings. States, direction. Bateman v. United Affirmed. (8 1960); Cir. Montos v. States, United 261 F.2d 39 Cir. practice sentencing court frequently order of commitment recom place

mends a for the convict’s detention.

However, generally it is while followed General, the Attorney only it recommendation and not an order of the BAUERS, Jr., Appellant, William J. court. HEISEL, Herbert T. Jr. reasons, doubtlessly, For these No. 15277. petitioners have not attacked the sentences, Federal because, and also Appeals Court of United States assume, Circuit. Third realize that no corpus exists in habeas in the Eastern Oct. 1965. Submitted District postpone Federal Court 22, 1965. Resubmitted Oct. modify otherwise the Federal sentences. May Decided pleas If the guilty were entered or passed sentences were Rehearing June Denied the Federal court misunderstanding on a ef concurrency fect of the provision, relief premises sought those only can be sentencing

motion in the court ruling

28 U.S.C. 2255. Of course our step.

does not foreclose that On motion under such a 28 U.S.C. § inquire the trial could if the

pleas tendered on understand- ing impression or under the sen- along tences would run the State

imprisonment. If the court so find, sentences, should then vacate

Biggs Freedman, Judges, Circuit

dissented. escape re- from the him for the Although larceny. formatory and auto on Jan- indictments were returned

these 3, 1951, uary appellant not tri«d alleged May of until the offenses therein During period, he was this entire serving imposed upon him the sentence County he the Essex Court. When eventually appear did Hunterdon counsel, County Court, requested coun- he jury appointed, was selected. sel was and a all The Criminal Minutes indicate that transpired prior 10:15 these events to day A.M. on of trial. The factual surrounding appointment of elements greatly counsel are not from dissimilar Bauers, Jr., pro J. William se. Alabama, the case of Powell v. State Heisel, Jr., pro T. se. Herbert 77 L.Ed. 158 concerning (1932), but no issue this is Judge, BIGGS, Submitted before Chief involved here. STALEY, and Circuit MARIS and Judges. recess, pleaded After a brief Bauers guilty immediately and was sentenced KALODNER, Resubmitted before years to a term two to three on each MARIS, Judge, BIGGS, Chief Mc- indictment, to run concur- sentences STALEY, HASTIE, LAUGHLIN, GAN- rently sentence he was then EY, FREEDMAN, SMITH and Circuit serving (and concurrently apparently Judges. other). prison

with each The rec- completed ords indicate that Bauers had STALEY, Judge. Circuit serving County the Hunterdon sentences complex factual bizarre The almost prior parole to his release on the present background prompted the which County Essex sentences. genesis litigation in certain events has applied February Bauers In early 1950’s. On in the occurred County dis Court to Jr., the Hunterdon Bauers, to 29, 1950, J. William October vacate 1951 indictments miss the herein, in- appellant two imposed after he on him the sentences Re- escaped Annandale from mates guilty. pleaded He contended County, formatory New in Hunterdon illegal he because were the indictments spree upon Jersey, crime and embarked juvenile were the offenses when was through him Hunterdon that carried his denied lower court committed. Jersey. Appellant’s Counties, New Essex Appellate application, Division but short-lived; however, he freedom, was Jersey Superior rev of New of the Court charged apprehended, indicted holding ersed,1 Bauers was since County. in Essex committed crimes eighteen years the offenses old when charges non pleaded of as- vult He committed, him over larceny were and auto to rob sault with intent lodged exclusively in the Juvenile County by the Essex and was sentenced Court, N.J.Stat. years in- and Domestic Relations on each four six a reference dictment. Ann. 2A:4-14. Without county prosecutor County the case to interim, the Hunterdon In 2A:4-15, Jury juvenile indictments had returned N.J.Stat.Ann. Grand largely (May 8, 1964), which was attached to and herein are taken 1. The facts recited part complaint. unreported opinion from the of the Su made of the Bauers, perior Court, State v. A-510-63 process no criminal could invoked officer Picking, juvenile. ruled that Act of it was decided illegal, since the that no be afforded indictments were pleas justice imposed peace, also a member of the sentences illegal judiciary expunged Pennsylvania; minor from the how- language ever, opinion record. far sweeping: more Subsequently, insti Bauers “* not unmindful [W]e present suit, alleging tuted the that the privilege conferred absolute defendant, Jr., Heisel, Herbert T. the common officers County Hunterdon at all Prosecutor performance of their duties. hereto, times relevant dam liable in * ** privilege as we But the ages appellant deprivation for the common law. was a rule of the stated liberty of his and for the denial power wipe Congress possessed right speedy to a trial. district The conclusion is think it out. We that complaint court ordered the filed and at enacting by Congress irresistible that “lacking same time dismissed it as judice intend- Act sub pertain [ing] in merit and to the matters abrogate privilege to the ex- ed to over jurisdic which the court has no by indicated act and fact tent 3 tion.” * * * statute must be did The so. appeal, On this the sole issue raised of the state deemed include members is defendant, acting whether the as the judiciary acting capacity.” in official County Hunterdon Prosecutor, im added.) (Emphasis 151 F.2d at 250. mune from suit under the Civil quarrel with we do choose to not While Act, 42 U.S.C. R.S. 1979.4 Be disposition at the propriety of this cause argu a full consideration of the made, believe that we do time it was presented requires ments a re-examina been at least then would have Act even position tion by taken this court contrary susceptible equally cons Picking Pennsylvania R., v. R. 151 F.2d Nevertheless, arewe certain truction.5 (C.A.3, 1945), 240 the case was submit reasoning employed and con ted to the court en banc. by given 1979 Su struction R.S. § Picking question Brandhove, There is no preme Tenney v. Court dispositive would be is- 95 L.Ed. 1019 Consequently, presently position sue us. contrary before we only portion opinion Picking requires adopted in us to reconsider deals it. overrule complaint officially any “Every person who, The was not served under color defendant; instead, statute, custom, ordinance, regulation, he received copy usage, any Territory, of it mail after the sub- or jects, or State Although appellee subjected, any been Heisel dismissed. or causes citi- to be appear per- did not in the district he has or other zen the United States appearance entered an here and submitted son within thereof to the adversary Thus, proceeding deprivation privileges, rights, brief. or Compare Cole, nature. Sires v. F. 320 immunities secured Constitution (C.A.9, laws, party 2d & n. 2 878-879 shall to the in- be liable jured law, equity, in an suit in action at procedure 3. We cannot condone the follow- proper proceeding redress.” court; requirements ed the district 4(a) explicit. appellee of Rule Had rules of construction which we here- appeared here, ap- and filed a brief apply applied inafter could have been pellant may have foreclosed from ob- Picking. We need decide whether taining review of the district de- court’s required rules would those a result Compare Calissi, termination. Urbano v. contrary to that which there reached. (C.A.3, 1965). deprivation 4. “§ 1983. Action rights.

585 Fox, (1958); Kenney brought Tenney, 2 813 v. L.Ed.2d suit was (C.A.6), sub cert. denied members a state 288 committee its 1979, 1980(3), Kenney Killian, legislature nom. 352 R.S. §§ formerly (1956); 1983, 1985(3), Tate 42 U.S.C. §§ 1955); Arnold, (C.A.8, 47(3). Court stated U.S.C. F.2d 782 §§ V. Morgan Sylvester, F.Supp. 380 that the issue before it was: 1954), aff’d, (S.D.N.Y., general Congress by “Did lan- (C.A.2), denied, 350 guage of its mean to 1871 statute over- 112, 100 (1955) ; Francis legislative turn free- tradition (C.A.1), Crafts, cert. de England by dom achieved in Civil War nied, L. carefully preserved in the forma- Ed. 357 This has also been view tion of State National Govern- adopted by in this district courts several ments here ?” County City circuit. Woodruff v. & at 788. (E.D.Pa., Philadelphia, F.R.D. making concededly “big After as- 1965) ; Hardy Kirchner, F.Supp. sumption” “that has constitu- Wissler, (E.D.Pa., 1964); Ellis power tional to limit the freedom of (E.D.Pa., 1964); F.Supp. Per legislators acting within State their tra- Rich, (D.Del., F.Supp. kins v. sphere,” ditional answered 1962), per curiam, F.2d 236 aff’d prophetic question: (C.A.3, 1963); Ginsburg Stern, 125 “ cannot believe We F.Supp. (W.D.Pa., 1954), aff’d on staunch advocate —itself grounds, (C.A.3, 225 245 F.2d legislative impinge on freedom —would grounded history in tradition so well inde- Though make we choose reason inclusion in the and covert us, analysis pendent issue before general language us.” Ibid.6 before what was little from rationale differs our ****#* n Arnold, supra: in said Tate v. “ ** * the individual de- [H]ere “ * * * judi the doctrine Since legislative fendants and committee ground immunity as well is at least cial acting legis- field in a where history rule is the reason as ed in and traditionally power act, lators have legislative immunity, have courts * * * and the statute 1871 does * * * language interpreted liability not create for civil such con- ** authority Tenney from 379, Id. duct.” at 71 S.Ct. at 789. Rights Act holding are not in We alone our belief that immunity.” abrogate judicial did not given the construction R.S. 1979 in at 223 F.2d Tenney light sheds new on the situation supra: Crafts, in and Francis v. Picking. in confronted us Al “* though Picking Picking case had [T]he cause of concern, Note, some without immediate see 46 in 1945 benefit decided compelling analo- Colum.L.Rev. 614 not until illumination Tenney pronouncement gy opinion of the after in found to be Tenney object Brand- v. became the wholesale fact, hove, explicit supra, In several disavowal. which came down five circuits ly Tenney years stated that discussion later. view of effect over Picking. Lynch, case, no doubt ruled Stift v. F.2d latter have 267 longer (C.A.7, 1959); City 237 Cuiksa v. Third Circuit would Picking Mansfield, (C.A.6, obliged, 1957), 250 in the F.2d feel as it did 700 denied, 937, case, 779, cert. 356 read the Civil U.S. 78 S.Ct. spell- (3) 6. The Cour.t 43 of Title 8—were §§ was free to make this deter- and 47 376, 341 at mination ed out in debate.” Id. U.S. because it stated that lim- “the (Emphasis added.) its of 1 and 2 71 S.Ct. at 788. §§ of the 1871 statute —now 586 unqualified such literal and manner legislators, respect than do state damages impose liability from civil for acts judicial a state officer for acts done capacity.” done in their official 203 judicial in the exercise function. F.2d Certainly hold, it would be absurd to rely plethora of on the Rather than application of the Civil officers cases which held

Act, state officers be immune from suit position stand maxims, less favorable Rights Act,7 two we believe (C.A.5 Ray, 1032, F.2d v. 352 213 L. 868, 7. Pierson 8 nied, S.Ct. 82 U.S. 369 , Byrne Kysar, justice) ; 1965) (police prosecuting v. judge (state (1962) 87 Ed.2d 1965) (physician- (C.A.7, Dougherty, F.2d 734 orney) ; 347 v. Smith att appointed denied, medical com members of court (C.A.7), 368 cert. F.2d 777 286 attorney) ; mission and assistant state’s 180, 97 L.Ed.2d 7 82 S.Ct. U.S. Chagnon, (C.A.9, attorney F.2d 601 Haldane v. 345 bailiff) ; as (judge, (1961) state’s (judges 1965) Arnold v. attorneys) ; v. Johnson state’s sistant (C.A.9, Bostick, 1964), 1960) cert. (C.A.9, MacCoy, 37 F.2d denied, L. Weimer, 382 U.S. 86 S.Ct. F.2d ; (judge) v. Bartlett ; (1965) (state judge) Rhodes v. denied, Ed.2d 96 (C.A.7, 1959), cert. Meyer, (C.A.8), (1960) cert. de 4 L.Ed.2d nied, doctor) ; 379 U.S. 13 L. appointed v. Larsen (court (1964) supreme jus (state denied, Ed. 186 court (C.A.9), Gibson, cert. F.2d 386 tices, judges, prosecuting state at district 4 L.Ed.2d 87 torneys, court, prison officials, ; clerks of justices) supreme (state (1959) integrated bar, (C.A.7, members sheriffs Lynch, F.2d 237 Stift 1959) officers) ; Harvey and law enforcement attorney, (state’s state’s assistant Sadler, (C.A.9, 1964) Carp 331 F.2d peace); attorney justice of the ; Agnew (judges) Moody, (C.A.6, 330 F.2d Dethmers, F.2d 131 enter (C.A.9), denied, supreme cert. (chief justice 1958) of state and clerk (1964) ; Gay Heller, urt) F.2d co 313 appointed (judges prosecuting attorneys) ; (state judge (C.A.5, 1958) eourt Lefkowitz, City Scolnick v. curator) ; Cuiksa (C.A.2), denied, cert. (C.A.6, 1957), Mansfield, (1964) (state L.Ed.2d 35 at denied, 937, 78 S.Ct. torney general attorney gen and judge); assistant (1958) (municipal 2 L.Ed.2d 813 eral) ; Superior Court, Harmon v. 329 Henderson, F.2d 529 249 Holmes v. (C.A.9, 1964) (state judges, F.2d 154 ; Ryan 1957) (state judge) (C.A.9, court attorney, sheriff, county clerk, district 1957) Scoggin, (C.A.10, 54 v. 245 F.2d probation officer, trustee, county court ; Nehrt, (state judge) 242 F. Skinner v. c.ounty treasurer); auditor and (state judge) ; Hurl (C.A.7, 1957) 2d 573 Graham, (C.A.6, burt v. 323 F.2d Scanlon, (C.A.7, 723 241 Peckham v. F.2d 761 1963) (justice peace prosecuting 1957) judge, and (superior court assistant torney) ; City Detroit, attorneys ; Puett v. reporter) at and court state’s (C.A.6, 1963) (municipal 323 F.2d 591 Kenney Fox, (C.A.6), v. 232 F.2d 288 judge, prosecuting attorney Kenney Killian, assistant and denied cert. sub nom. v. corporation counsel) ; Cole, 855, 84, Sires v. 320 352 U.S. 1 L.Ed.2d 66 77 S.Ct. (C.A.9, 1963) (state judge, F.2d 877 (1956) (state judge prosecuting at and prosecuting attorney deputy prosecuting torney) ; Arnold, and Tate v. 223 F.2d 782 torney) ; Phillips Nash, v. (C.A.8, 1955) (justice peace) ; 311 at F.2d of the (C.A.7, 1962), denied, 513 Bibb, (C.A.7, cert. 374 U.S. Eaton v. F.2d 446 217 809, 1700, 83 S.Ct. 1954), denied, 915, 10 L.Ed.2d 1033 cert. 350 U.S. 76 S.Ct. (1963) (state’s attorney) ; Gately 199, (1955) (state’s v. Sut 100 L.Ed. 802 at ton, (C.A.10, 1962) (state 310 torney) ; F.2d Nester, 107 Jennings v. F.2d 217 153 supreme judges) ; Cooper Wilson, court (C.A.7, 1954), denied, 958, v. cert. 349 U.S. (C.A.6, 1962) (private 309 F.2d 153 (1955) at 99 L.Ed. 1281 torney ) City ; Chicago, (state’s attorney); Wise v. Gazzola, 308 F. Dunn v. 216 (C.A.7, 1962), 2d 364 denied, (C.A.l, 1954) (police cert. officer, 372 F.2d 709 superintendent 83 reformatory 9 L.Ed.2d 969 and state (1963) (city prosecuting attorneys) ; acting pursu commissioner of correction Saier Michigan, v. State order) ; Bar of Lyman, 293 ant F.2d court Francis v. (C.A.6), denied, 756 cert. (C.A.1, 1954) (commission 216 F.2d 583 82 supreme (1961) (state prison superin ers of correction and justices) ; acting pursuant judicial Kostal v. tendents Ston de er, (C.A.10, 1961), cree) ; Cawley 292 F.2d 492 Warren, cert. de-

587 steadily records, main- statutory and it has been one construction current of restraint, applied undisturbed judicial tained an when English courts, Tenney, clearly amidst coupled decisions indi- through change policy, every judicial immunity not cate ab- government.” every rogated by of their revolution the Act. concluding the statute First, that a remarks —that His well settled it is being in dero not read could considered not be construed statute should there abrogating judicial it ex gation law unless immuni- impliedly common of the impera ty applicable here: peculiarly result pressly or the so states —are tively “Ought principle of the required nature from the such sacred * * * Corp. v. with- Service subverted Mobile Gas enactment. common aff’d, 1954), (C.A.3, FPC, express ef- declaration out Pipe Mobile Gas Line Co. v. further review United Id. 296. For a Gas fect?” judicial Corp., precedents historical Service Fisher, (1956); Bradley Dis American 100 L.Ed. see 373 Kittleson, 347-354, Telegraph Wall.) 335, 20 L.Ed. 646 trict Co. v. (C.A.8, 1950); (1871). Richard Scharfeld v. son, U.S.App.D.C. F.2d has us also The statute before There can be 145 A.L.R. 980 effect; express declaration judicial concept little doubt history adequately legislative nor does Anglo- deeply rooted Congress in support conclusion that Lansing, In Yates American law. immunity.8 Johns, tended to dissolve R., (N.Y.) (Sup.Ct. Judicature, 1810), factors, Chief in con Justice Kent considered These when noted that: junction Supreme Court’s deter with the “ * * * legislative immunity was mination that immunity] [judicial It Act, purpose of inimical to the earliest to be found (E.D. Reid, F.Supp. Souther (state’s attorney, 1954) (C.A.7, his first 1951) (state judge). Va., foreman) ; jury grand assistant (C.A.1), Crafts, Francis v. legislative history Our search of the denied, out R.S. bears Court’s (1953) (state judge); Wood Tenney, quoted statement pra, at note 6 su- County City Philadelphia, ruff that “the limits of 1 and §§ 1965) (judge (E.D.Pa., F.R.D. 468 spelled statute magistrate) ; Hardy Kirchner, 232 F. are, however, out in There two debate.” Supp. 1964) (E.D.Pa., (judge, dis by opponents H.R. statements attorney alderman) ; trict Wissler, Ellis v. version House of R.S. which de- (E.D.Pa., F.Supp. 1964) serve mention. (judge attorney) ; Ray and district Congressman Kentucky Arthur of as- Huddleston, F.Supp. (W.D.Ky., 212 343 Bill, stating: sailed 1 of 1963), aff’d, (C.A.6, 1964) 61 327 F.2d “Hitherto, history in all of this (state ; judge) Rich, 204 Perkins F. country England, judge and of no or Supp. (D.Del., 1962), per curiam, 98 aff’d liable, civilly court has criminally, held or (C.A.3, 1963) (judge) ; 316 F.2d 236 * * judicial acts *. Houston, (D. F.Supp. Rhodes 202 624 provisions Under of this section Neb.), aff’d, (C.A.8, 1962), every every judge court and in the State denied, 909, 724, 372 U.S. small, great thereof, will en- or officer (1963) (district judge, 9 L.Ed.2d 719 upon pursue of official call and ter prosecuting attorney, court, clerk of and duty Damocles sus- sword of in certain instances enforcement of * Cong. pended him over wardens) ; Ginsburg Stern, ficers and Globe, (1871) Cong., 365- 1st Sess. 42nd F.Supp. (W.D.Pa., 1954), 125 596 aff’d 366. Congressman grounds, (C.A.3,

on other Kentucky Lewis, of also 1955) justice (chief prothonotary of Bill, charged opponent of another supreme court) ; Morgan Syl that: vester, F.Supp. (S.D.N.Y., 1954), 125 cases, “By section, in certain the first aff’d, (C.A.2), though cert. de judge act- of a State the ing nied, 867, 112, 100 office, 350 U.S. S.Ct. L.Ed. of is made lia- under oath (1955) (trial appellate judges) ; a in Federal court sub- ble to suit a inescapable lead to the technique employed by conclusion that This Su- deroga- the Act was preme not intended to Tenney, be in and the consti- of tion the common law. Congress tutional issue of whether power abrogate legislative to immuni- upon The basis which we second ty was avoided Court’s conclusion ground our conclusion that the tradition Congress did not intend to abolish concept judicial of al remained immunity. by the enactment of the Civil undisturbed spell Tenney, did out the Court support max its finds particular barrier constitutional classically judicial an ims restraint might to Con- void such which be raised nounced in Ash Mr. Justice Brandeis Though gressional we would action. Authority, Valley wander v. Tennessee go further, compelled to choose be 466, 288, 341, 56 L.Ed. 297 U.S. perhaps spell at least one several out (concurring (1936) opinion). Char questions ne- which would constitutional acterizing approach should a court cessarily arise if Act were construed when take confronted with a case such abrogate immunity. so as considering, presently as the one arewe he stated that: 4, United States 4 of the Article “ ** # a ean decided case “The United provides: [i]f Constitution involving grounds, every on one either of guarantee two State shall States question, a other a constitutional Form Republican a in this Union ** statutory question construction The framers Government general only law, Court will be- clearly decide their evinced Constitution ju- Nash independent latter. v. Louisville & Siler separate lief that Co., 175, ville R. S. [29 indispensable element diciary is an 753]; 451, Light Ct. United government. republican See form of States, seq., 303-305, Federalist, [31 S.Ct. pp. 488 et abrogation 55 L.Ed. at 570].” seq. We believe 494 et S.Ct. at ject against damages Packers, Vegetable for his decision B.R. v. Fruit & L. suitor, 58, 66, honest and however conscien- U.S. Local may ; (1964) tious that decision N. L.Ed.2d Products, Inc., Id. at Thompson R. B. v. L.

Although appear strong (C.A.9, 1944). statements these surface, scrutiny Unanimity favoring careful those those opposition course, stand great- more opposing legislation is, little than re- recently Hosiery Leader, marks. The Apex Court has Co. v. er value. weight reiterated be ac- n. 15 at only corded such (1940). remarks: situa- 84 L.Ed. 1311 “ * * * have often opponents’ [W]e cautioned tion where statements have danger, interpreting when proponents made relevance where the statute, response reliance the views State of Arizona v. them. legislative opponents. California, In their zeal State n. 85 bill, they understandably defeat tend to overstate its surrounding reach. ‘The fears The circumstances opposition doubts of especially no au debate on H.R. as to guide quoted speeches, thoritative legislation. to the construction of indicate that two re- sponsors sponses expected. is the It we that could In legisla- not be the meaning look to place, when speeches the statu first on the tory Schwegmann words eventually emerged is in doubt.’ tion which as R.S. Corp., Bros. v. pages Calvert Distillers 341 U. 1979 consume § Congressional hundreds 384, 745, 750, S. 394-395 S.Ct. [71 95 L. Even im- Globe. more 1035]; portant Ed. quoted see also Mastro Plastics is that the two statements Corp. response v. National Labor Relations above made times when at Board, 270, 288, 349, unlikely. [76 S.Ct. would have been The first was 350, ; session, night 100 309] L.Ed. United States at a while made the second Calamaro, 351, 9, Saturday during n. [77 at 358 was delivered session. 1138, 1143, S.Ct. 1 L.Ed.2d N. 1394].” 224-225, The cases 713-714. judiciary destroy independence of the however, Court, ex involve consequently cited States, and in the various traordinary which would circumstances deprive republican form of a them Rights present Act the Civil not be government. language if of the Su- The im to aboíish Bradley Fisher, were construed preme U.S. Court overbearing munity. absence 347, 646, (13 Wall.) 20 L.Ed. lends presence political of sub factor and the support to our conclusion. precedent as criteria to serve stantial “* ** general principle t is a [I] might analysis require new well a whole highest importance proper to non-justici of the Guarantee Clause justice judi- administration that ability. only Fortunately, our task to exercising authority officer, cial problem, resolve Com state the not to it. him, upon free vested in shall be to act pare majority opinion Baker v. convictions, apprehen- his own without Tel. & Carr with Pacific States Tel. Co. personal consequences sion of him- Oregon, v. State S.Ct. Liability everyone self. to answer to (1912); compare 56 L.Ed. might aggrieved by who himself feel concurring Douglas, J., opinion of 369 U. judge, the action of the would be incon- at with the dis S. 82 S.Ct. at possession sistent of this free- senting opinion Frankfurter, J., id. dom, destroy independ- and would that 266, 82 at 737. judiciary ence without which can be place construction we respectable (Empha- either or useful.” only Act not avoids consti added.) sis issue, tutional but is also accord with in Civil Our belief that mandate that Act would Court’s adjudication violate if cases “lodestar of Guarantee Clause construed abrogate judicial immunity has been that statute ‘should be does not con necessarily respect proper strued so mean that either as to balance this court gov or the between would the States and the federal have ” power remedy wrong. ernment v. Min *.’ Stefanelli The Su preme ard, 117, 121, 118, 121, long Court has held in a U.S. line cases, beginning (1951). Borden, Note, 96 L.Ed. with Luther See also (1955); Note, How.) U.S. 12 L.Ed. Harv.L.Rev. Congress charged (1961). Ind.L.J. 334-335 with the en Alleged forcement of Art. 4.§ vio question deciding lations of this clause have been held to attorney is liable whether prosecuting present “political questions” which are capacity, we in his official for acts done non-justiciable. Carr, See Baker v. duties suffi his must decide whether 186, 218-226, L.Ed. ciently him to cloak with the as 2d 663 Even this case fell judges or are afforded same within “non-justici that class labelled closely duties of to those so related able,” we believe be all the him to amerce officials as enforcement why more reason impute we should not liability for potential his im civil blatantly the intention to Pape, prudent Monroe v. actions. See violate that trust. Comment, holding Despite (1961); Ark.L.Rev. wealth cases (1964). Analogy support non-justiciable, could Art. 84-92 violations govern conclusion, in- but believe we think none would either require precedent weight reason stant The numerical case. both attorney granted action, prosecuting those cases have involved state pointed mem same afforded the Court out in Baker v. but judiciary. Carr, challenges supra, Congressional The reasons are bers of the primary responsibility is essen action the clause like- clear: based tially judicial prosecution non-justiciable. wise held Id. at —the guilty protection innocent, expressly the Court failed to and the mention corporation States, Griffin 295 F. 439- United counsel as individual v. de (C.A.8, 1924); fendant, hardly prop his office is can for the vested be cited quantum prosecuting attorney of osition a vast discretion which is necessary for is the vindication of the immune.10 public respect, In interest. it is im immunity prosecu of a perative enjoy he same freedom tor, however, limitation; is not without independence of as that which action immunity is not absolute. The of is accorded members of bench.9 This judges, pros from which the of reasoning nearly is as well established in derivative, ecutors does not extend to Anglo-American judicial immunity law as clearly juris acts which are outside their (C.A. Goff, itself. v. F.2d Yaselli Bradley Fisher, diction. In 80 U.S. 2, 1926), aff’d, per curiam “on the au (13 Wall.) 335, 351-352, Supreme * * * thority Bradley of v. Fisher guidelines Court established the for de Johnson, [and] Alzua v. 231 U.S. termining scope judicial immunity: of 142],” [34 S.Ct. “ * * * [J]udges courts of su of 72 L.Ed. 395 jurisdiction perior general are not (1927), and numerous cases authori their for liable to civil actions Prosecuting ties cited attorneys therein. acts, are in excess when such acts even who have been sued under alleged jurisdiction, and are their Rights Act, R.S. likewise maliciously or cor done have been Laughlin held immune. v. Rosen ruptly. distinction be here ob must A man, U.S.App.D.C. 164, 163 F.2d 838 jurisdiction served between excess of (1947); Kenney Fox, supra, and other jurisdiction absence of all the clear cases supra. cited in note subject-matter. Where there over the City Egan Aurora, case of clearly jurisdiction no over the sub 684, 5 L.Ed.2d ject-matter, any authority exercised is contrary require does not authority, usurped for the exer case, result. authority, cise such when the want opin per Court in curiam jurisdiction judge, to the known part ion affirmed and re vacated permissible. no excuse is appeals manded to the court of causes Thus, probate court, only invested against authority certain individual defendants over wills and settle- (one corporation whom counsel for persons, ment of estates of deceased City Aurora, Egan City see proceed try parties public Aurora, (C.A.7, 1960)) offences, subject over opinion Ap because the of the Court of being entirely wanting of offences peals explicit respects was “not being necessarily and this grounds * * dismissing judge, known to its commission *.” protection at S.Ct. at would afford to him in disposition, especially 685. This since usurped authority. exercise arguments duty 9. We public find the traditional to the the individ- not to support applicable here; ual; (6) feeling ballot and “(1) danger influencing proceeding are the formal removal are more public suit; ways appropriate honesty officials threat of a law enforce (2) potential efficiency public Note, the deterrent effect of lia- officers.” bility considering (1953). on men who enter- Harv.L.Rev. n. 54 ing public life; (3) the drain the valu- able time of the official caused insub- The failure the Seventh to re Circuit require stantial [which suits inordi- mand to the district cause private Bradley keeping, corporation nate record counsel substanti Fisher, (13 Wall.) ; (4) ; position. (1961) 349] ates this subjecting Phillips Nash, the unfairness officials see also subordinates; (C.A.7, 1962), denied, for the acts of their (5) theory the official owes a appel incarceration, pleas, judge sentences and of other hand a a But on the liberty general without due his lant was denied criminal .invested Assuming arguendo process. this jurisdiction com- over offences criminal liberty of a district, denial denial a mitted within certain abridged speedy appellant’s public constitu trial particular hold act rights,11 bring him as to within tional so offence, law made which not regard, can in that we offence, proceed U.S.C. the arrest perceive charged the defendant acted party with such and trial of a jurisdiction clearly act, party his in either outside or convict- should sentence greater matter. punishment than that ed to a proper its

authorized already We indicated that have construction, personal primary prosecutor responsibility of a attach civil action acts would such wrongs is to which have vindicate although judge, acts would those against society. been committed This is jurisdiction excess his precisely appellee doing what was when liberty appellant’s denial occurred. The elear-absence-versus-mere-excess-of substance, Jersey Legis has, The mere fact jurisdiction New distinction responsibil lature had adopted applied in excised from his ity prosecution brought judges against individuals who Act cases age eighteen were v. when Robichaud officers. 1965); committed Ronan, (C.A.9, acts would otherwise be Cor F.2d punishable Pitchess, offenses F.2d does indicate that Productions sican acting jurisdic clearly Bottorff, he 1964); (C.A.9, Spires outside contrary, tion. On the (C.A.7, 1963); it be diffi Lewis v. F.2d cult to envision case Brautigam, which was as close- 227 F.2d 55 A.L.R.2d jurisdiction, but, yet, to his excess (C.A.5, 1955). is con Because it. solely by on an virtue ferred individual holds, requires he reason us office speedy trial, As to the of a denial even adopt provide im a rule which does not if we assume that the defendant re- munity for those acts which are done sponsible delay, for the we believe that clearly authority jurisdic outside motions for continuances or other causes of the office. delay tion are well within the prosecutor. of the must, Accepting, the truth we appel pleaded allegations Having these substan decided proceed to exam re complaint, questions, matter we now one further lant’s tive legal frame As facts within for our consideration. ine those mains us, posture main is not above. set forth case comes before work Tenney greatly de complaint is that dissimilar from that thrust Brandhove, Ninth known that should have came before knew or as it fendant age Circuit, appellant reached the had not alleged Court, eighteen S.Ct. offenses when the committed, procuring the in L.Ed. 1019. district and that resulting Tenney him and the had dismissed dictments unlikely rights. highly de Ciesielski See his constitutional 1 1. We think proceed Ohio, in accordance failure to fendant’s 841, appeal Jersey statute, dismissed March N.J.Stat. New L.Ed.2d itself, 4-15, 1966; re ex rel. Von Cseh in and United States Ann. 2A:4-14 — 1963) process; (C.A.2, Fay, due nor a denial of sulted in therein; appear give denial see authorities cited rise to cases and would this equal Ewell, protection. Miller v. But see also United States (Feb. Rhay, granted, April 773, 15 L.Ed.2d 627 4, 1966, 34 L.W. 3341. appellant’s believe that denial We also speedy probably trial not violate of a did Thus, agree complaint that the of action. I here to a cause failure state action, a of Supreme fails to state cause but for a the The Court reversed Ninth upon reason different from district court’s that Circuit and affirmed the place majority principal the reliance. to state a cause of dismissal for failure judgment affirm the likewise action. We grounds that of the district court the BIGGS, Judge (dissenting). Circuit complaint a of ac- the fails state cause presented by There are two issues this tion. appeal: first, défendant, County is the judgment The of the district court will Heisel, Prosecutor from immune suit be affirmed. brought Rights the Third Civil Act, 1979, and, 42 U.S.C. R.S. § KALODNER, Judge (concurring second does the state a cause Chief result). of action him? first, overruling question To deal with the in second concur of our hold- I thought I ing Picking Pennsylvania Co., in this R. that was answered adequately (3 Cir., 1945). plaintiff-appel- and in F.2d by lant’s favor our in decisions Basista I also of concur in the affirmance Weir, (1965), and Ander- dismissing District Court’s Order Haas, son v. In the Complaint my sole reason that Judge Staley Anderson case Chief con- opinion sweep Rights Act, of Civil cluded, id. at that the contention of 42 U.S.C.A. Sec. R.S. Sec. 1979 does police good officers that acted in not extend a cause of action such as faith and without malice could be no de- Complaint that which the asserts. brought fense a civil action under Sec- Since I of am the Com- view surely tion very finally 1983. But plaint of un- fails state cause action scope Rights of the Civil Acts has Rights Act, der the I Civil do not reach Price, defined United States v. majority’s holding reference to opinion S.Ct. 1152 and the of “judicial of the extension of doctrine Supreme certainly Court in Price immunity” prosecuting attorneys. opinion in accord with the of this requires court and reversal of tri- this HASTIE, Judge (concurring Circuit bunal’s decision unless Prosecutor Heisel be found to be immune from a suit such result). agree By as that at bar. Picking Pennsylvania Price decision the I Railroad, Cir., Court has revitalized 3d 151 F.2d the “Re- Rights construction” Civil I should be do overruled. But not share Acts. majority the view the the doctrine respect issue it was to the “judicial immunity” protects whatever Picking pointed Pennsylvania out in public prosecutor acts of are “done Co., 1945), R. Cir. capacity” “clearly his official or are not expressly now overruled jurisdiction”. outside his person” phrase “every Section phrase “any person” 1983 and the However, pres- I am satisfied that the Rights Act, Section Third Civil complaint, charging prosecutor ent 20, 1871,1 April purposely erroneously prosecuting plaintiff possi as broad in definition made an adult known when he should have ble. age plaintiff was under the reading history legislative deprivation does not state On such right impossi- federally Rights comprehend- I Acts find it is secured as is original Rights Act, ble concludé that created ed legis- office, 1983, formerly than R.S. barrier U.S.Code § power, lative, con- predicated. which federal behind which this claim April 20, 1871, Stat. 13. Act of rights operates upon him the citizen Acts, was not intended ferred citizen, an officer.” history as a and not as legislative The reach.2 makes this Act alone Third Civil view, my quote, in last sentence Pool, plain. of Senator statements Congress intended the Civil dicates that opinion, Appendix to Price every per applicable to Acts to be the Enforce et directed to seg., officer. son as and not as state citizen 16 Stat. and the ment Act offending An the Acts action official itself, illuminating. Enforcement Act have been committed must deemed to opin points Mr. out in Justice Fortas by qua a such a citizen.4 Under citizen 1161, En ion, id. 86 that the S.Ct. immunity by virtue view there can be no Act forcement “included a reenactment office, legislative excepted. of office state Rights provision of a of Civil Act preceding expressed The view in. of 1866 which is now [18 U.S.C.] § paragraph imaccord with the seems Rights 242”. I think of that all pronouncement in Mr. Fortas of Justice must Acts be deemed to based 1163, opinion, the Price id. S.Ct. at congressional on the same considerations acknowledg follows: “He [Senator Pool] rights protected and that the secured and beyond ed that such the States as by scope are Acts the same in whether process, punitive the- reach of and that they by are be enforced criminal or legislation operate upon must therefore conclude, therefore, civil sanctions. I He made it clear that ‘It individuals. respect that Senator Pool’s in statement matters these individuals whether pertinent to the Enforcement Act are in acting upon officers or whether are construing judice. the statute sub responsibility.’ no their own We find in evidence whatever that Pool Senator briefly referring Pool, after Senator tended 241 should viola not cover § emphatically conditions which but rights, of tions Fourteenth Amendment brought Congress enactment to the or that it not include action State 27, Rights Act, 14 Stat. of the First Civil by officials.” actions state At an ear legislation no stated: “There is point respect lier of reach prevent passing a could reach State to 241, U.S.C.A. Mr. Justice Fortas stat denigration of the First Civil a law [in find no for a ed: “We basis whatsoever legislation] can It Act]. [federal judgment give which of Solomon would only reach the citizens of the individual the statute less its words com than in. the enforcement of law. You State mand.” I can entertain no doubt have, legis- therefore, any appropriate prosecutors by are “commanded” lation, citizen, not on to act on the “words”. you by you pass If an act which State. majority opinion contains the in- make offense for indictable an offi- teresting suggestion upon Article based by Constitution, any IV, of cer to execute the State of the Section trespasses upon any Acts unconstitutional would be which he these history legislative the Third For 3. reliance on I think that this court’s Congressional Rights Act, Brandhove, Tenney see The Civil Session, Globe, Congress, (1951), First 42nd mis- 95 L.Ed. p. 1, report case, Supreme No. placed. on H.R. Part In the cited debate, pp. liability dealing 461 and with the Court pp. 2, Appendix, Legislature members the California Part by 216-217. under the Acts embraced 47(3), and not U.S.C. with the §§ exception - a With of a citizen who is law enforcement officers. legislative Compare officer accordance Presidents Eastern R. R. Conf. Tenney principles Motors, Brand enunciated v. Noerr hove, (1961), previously adjudicated rights as stated par- body opinion. of this ties 2 of the Sherman §§ Clayton 4 of the Act. (dissent- put Judge FREEDMAN, construction them in this dis- Circuit senting opinion theory ing). correct. by espoused majority immu- is that prepared prose- I am a to hold that nity right judiciary is a basic un- such, cutor, enjoys privilege full separation powers, der the doctrine of judicial prosecutor, officer. A al- attempt and that to limit though public official, is in the actual or abolish that would unconsti- government’s simply trial of a case tutionally judicial encroach on the lawyer, adversary just is the de- as his governments branches of our state so that lawyer. Both of them fendant’s republican government form profes- bound standards longer agree princi- exist. I although ethics, prosecutor sional ple part quasi-judicial often is called of- Anglo-American law. was created It ficer, characterization which de- policy See, decisions for reasons. obligation client, scribes his to his example, Goff, Yaselli v. 12 F.2d 396 State, not to seek win a case principle judi- Cir. But the good an innocent defendant or win a to immunity, judge made, cial cannot raise by case unfair means. majority a constitutional issue as the as- equate trial conduct the I would not principle by serts. A established deci- adjudicatory prosecutor role of a with the by sional law can be overturned an act process a judge, whose duties involve a legislature. aof But undesirable be it would so delicate foregoing, aside from the we are con- inquiry by subject under him to suit to immunity prosecu- here cerned of a Rights An stands advocate the Act. Civil tor, judge, though not with a totally position I do in a different majority opinion by way of dicta seems advocate the state’s not believe only to judges extend to the de- immune than should be more police officers, but also to albeit with a by advocate, is licensed who fendant’s jurisdictional qualification toas lat- police State, I therefore officers. or its inoperable ter which I believe is or non- prosecutor from dissent view that police existent. That officers do not have liability un- from cases immune is all rights in civil suits was decid- Rights der Act. Pape, ed Monroe v. 184- hand, may well be there (1961). On 81 S.Ct. prosecutor in aspects of a duties Assuming .that issue of an constitution judgment in a must which he exercise ality is reached here it should decided truly quasi-judicial which manner only upon only a full record and if neces in nature. That area therefore sary. Schaick, See Van Villa v. scope partial, of a cluded within thé 152, 155-156, 81 L.Ed. immunity. prosecu quasi-judicial (1936), Honeyman Hanan, appropriate court tor’s decision 14, 25-26, prosecution had should be L.Ed. 476 The fact is that prosecu hold a in which would matter I present decision emasculates the Civil appears an in tor immune unless there Rights Acts in the Third Circuit. This is aut and malicious abuse of his tentional unfortunate for there need for them in area, hority.1 in such an It is this Circuit as elsewhere. recog only, give would that I extent aspect reasons, respectfully quasi-judicial For these I must nition prosecutor’s dissent. function. legislature, Pfister, torney Dombrowski of the 1. Cf. member threatening to in- and were L.Ed.2d 22 had invoked proceedings faith in had where the said that a under claim voke criminal only any hope success, but the Civil made out where and without officials, discourage plaintiffs’ rights alleged ac- civil it includ ing attorney general, a district at- tivities. present complaint jurisdictional question is not case need be, prosecutor’s procedural made conduct on the merits.3 This re case, quirement especially in his the trial of the but rather seems me desira significant question choice of which the ble in so before as the charge ap scope plaintiff prosecutor’s immunity This of a should be tried. from par liability pears fall an to me to within area Act. However, immunity. tial since this I therefore the dismissal vacate boundary partial immunity and between complaint and remand the cause full would now be delineated proceedings regular course dealing the first time and since we are litigation under the Rules Civil Proce- inartistically complaint with an drawn dure. layman se, pro framed I would finally dismiss afford the but would

plaintiff opportunity to amend

court below.2 cir- this view

I am reinforced decision below in which the

cumstances us comes to record As the

was rendered. simply an or- judge entered the district B, Augustin NICOLAS, D. SAN Dolores directing com- the dismissal der Duenas, Rosita D. Duenas jurisdic- plaint the court because Appellants, ordered the same time tion together clerk file LIZAMA, by Del Antonio P. S. Frankie pointed As we order dismissal. Appellee. litem, gado, guardian ad his Calissi, out Urbano No. 19936. 1965), (3d was order a similar Cir. where here, where, no service entered and Appeals United States defendants, plaintiff made on Ninth Circuit. opportunity heard entitled to an May ap- have court below and defendants

propriate the Rules of means under for the dismissal Procedure to move summary judgment. for

the action or benefit of the will have the

Thereafter we judge at arrived conclusion the district contending hearing parties on

after complaint alleges the defendant appellees court. case before plain- known” “knew or should have the aetion kind is desirable that this permitted yet eighteen years age customary proceed tiff alleged op- the time of the commission of the to an. was entitled manner. Plaintiff juvenile legal ques- sub- offenses and therefore was ject portunity to be heard on the exclusive conclusion the court’s involved tions juvenile domestic relations court. It dismissed. should be alleges Court, Superior also that “defendant’s malicious Harmon v. See disregard (9 the aforesaid duties of Cir. The defendants plaintiff appropriate office caused to be denied a the Rules of means under speedy trial”, notwithstanding five letters dismissal to move Civil Procedure plaintiff approxi- period judgment. summary from from over a or for action mately May, April, 1953, op- 1951 to re- all full both will have At that time sides questing speedy present portunity trial. contentions and their Judge District conclusion the whatever appears 3. We said in Urbano: “It may (See on the merits Sheridan arrive at none the defendants has served 1964)) Williams, 333 F.2d Cir. complaint. with the There is therefore no views party will have the benefit of the proceed- defendant of record in the ing. result, contending parties on merits and on As a when the case was sub- appeal jurisdictional mitted question.” to us on there

Case Details

Case Name: William J. Bauers, Jr. v. Herbert T. Heisel, Jr

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 9, 1966

Citation: 361 F.2d 581

Docket Number: 15277_1

Court Abbreviation: 3rd Cir.