Benavidez v. Howard , 931 F.3d 1225 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 2, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
VANESSA BENAVIDEZ; STELLA
PADILLA,
Plaintiffs - Appellants,
v. No. 18-2027
NATALIE HOWARD, Albuquerque
City Clerk; JESSICA MARIE
HERNANDEZ, City Attorney;
WILLIAM ZARR, Assistant City
Attorney; NICHOLAS BULLOCK,
Assistant City Attorney,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CV-00966-WJ-LF)
_________________________________
A. Blair Dunn, Esq., Western Agriculture, Resource and Business
Advocates, LLP, Albuquerque, New Mexico, for Plaintiffs-Appellants.
Jerry A. Walz (James J. Grubel with him on the brief), Walz and
Associates, P.C., Albuquerque, New Mexico, for Defendants-Appellees.
_________________________________
Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
_________________________________
PER CURIAM.
_________________________________
Vanessa Benavidez and Stella Padilla contend that Defendants
violated their First Amendment rights by filing a motion in a civil case.
The district court dismissed their complaint. For the following reasons, we
affirm.
I. Background
Because Stella Padilla’s nominating petition for Albuquerque mayor
lacked the required number of valid signatures, the Albuquerque City
Clerk, Natalie Howard, rejected her request to appear on the ballot as a
candidate in the city’s 2017 mayoral election. Padilla promptly sued
Howard in her official capacity in state court for a declaration that she had
satisfied the nominating petition requirements to be a candidate for mayor.
Padilla v. Howard, No. D-202-CV-2017-03556 (Bernalillo Co., NM, filed
May 19, 2017).
Less than a month later, Howard, represented by the city attorney’s
office in the state action, filed a “Motion for a Protective Order Against
Harassment of the Defendant by any Volunteer or Other Person Associated
with Plaintiff’s Campaign Organization.” Attached to Howard’s motion
was her “Affidavit in Support of Motion for Protective Order.” In her
affidavit, Howard complained specifically about harassing conduct that
Padilla’s daughter, Vanessa Benavidez, had exhibited toward her on two
recent occasions.
2
A week later, Howard filed a motion to dismiss Padilla’s complaint
for failure to state a claim. Without comment and with Howard’s motion
for a protective order still pending, the state district court dismissed
Padilla’s complaint with prejudice on July 7, 2017. Rather than pursuing a
direct appeal of the state court’s ruling, Padilla unsuccessfully sought a
Writ of Superintending Control from the New Mexico Supreme Court. See
N.M. Const. art. VI, § 3 (“[T]he supreme court . . . shall have a
superintending control over all inferior courts[.]”).
Padilla and Benavidez then filed this collateral § 1983 action for
damages in federal district court on September 21, 2017. Plaintiffs’
complaint asserts that Howard’s motion for a protective order in the state
action chilled their free speech rights and effectively sought, through a
“vindictive prosecution,” to prevent them from exercising their rights to
petition the state court for redress. Plaintiffs sued not only Howard in her
official capacity, but also the city attorney, Jessica Hernandez, and the two
assistant city attorneys assigned to represent Howard in the state action,
William Zarr and Nicholas Bullock.
The four corners of the complaint are woefully short on the facts
giving rise to Plaintiffs’ claims. The complaint alleges little more than that
Defendants, “acting in concert,” filed a motion for a protective order
inconsistent with New Mexico law “without justification and cause, solely
to harass Plaintiffs and prevent the continued criticism of the City of
3
Albuquerque employees and to deny Plaintiffs the right to petition their
government for redress.”
Attached to Plaintiffs’ complaint, however, is a copy of Howard’s
motion for a protective order and her sworn affidavit in support thereof. 1
Howard’s unrebutted affidavit states that on May 19, 2017, Benavidez
served her with Padilla’s state court complaint in the public area of the
city clerk’s office on the seventh floor of Albuquerque’s Plaza del Sol
building. But then Benavidez erroneously insisted that Howard sign the
affidavit of service. Howard refused and walked toward the door leading
into the private secured area of her office. Benavidez yelled at Howard and
told her she could not leave until she signed the affidavit. Howard attests:
“I continued to the secured area, and, as the door was closing, [Benavidez]
pushed the door open and entered into the non-public area of the clerk’s
office. [Benavidez] followed me into the secured area, stood approximately
12 inches away from me and continued to insist that I sign the affidavit.”
Benavidez left the secured area only after Howard directed staff to contact
security. Moments later, Howard departed her seventh-floor office with a
staff member and security officer to attend a meeting outside the building.
1
Because these two attachments, Howard’s motion for a protective
order and accompanying affidavit, are central to Plaintiffs’ claims and the
authenticity of the state court documents is undisputed, we may consider
them as part of Plaintiffs’ federal complaint. See Hampton v. Root9B
Tech., 897 F.3d 1291, 1297 (10th Cir. 2018).
4
When the elevator reached the seventh floor and its door opened,
Benavidez was standing alone in the elevator. Benavidez remained in the
elevator for the ride down, all the while staring at Howard.
Howard further attests that on June 5, 2017, she was preparing to
attend a hearing in Padilla’s state action when Benavidez again confronted
her, this time on the steps of the Bernalillo County Courthouse. Benavidez
approached Howard at the top of the steps carrying a “Stella for Mayor”
sign. Benavidez “positioned herself approximately six inches away from
me while yelling at me about the case. She proceeded to walk backward
directly in front of me, with the ‘Stella for Mayor’ sign in front of my
face, blocking my path. I felt [Benavidez] was attempting to intimidate
me.” When Howard told Benavidez to stop harassing her, Benavidez
replied: “‘You don’t know what harassment is.’” Howard concluded her
affidavit by stating that Benavidez’s “pattern of conduct” had caused
Howard to become “reasonably concerned” for her physical safety.
II. District Court’s Ruling
Upon motion and after a hearing during which the district court
expressed legitimate reservations about numerous aspects of Plaintiffs’
federal complaint, the court entered a written order dismissing the case.
Benavidez v. Howard, No. 17-966, 2018 WL 565706 (D.N.M. Jan. 24,
2018) (unpublished). The court held that all Defendants were absolutely
5
immune from Plaintiffs’ § 1983 action. 2 The court ruled that the named
Defendants from the city attorney’s office were immune because in
submitting the motion for a protective order to the state court they were
participating as advocates in the judicial process: “They did so as part of
their duty in defending City Clerk Natalie Howard against a state court
lawsuit which Plaintiff Stella Padilla initiated, and their objective in taking
that action was one of advocacy, which earmarks it for the protections of
absolute immunity.” Id. at *5. The court reasoned that the filing of the
motion for a protective order “belongs in the category of actions that are
associated with the judicial process rather than those that are investigative
or administrative in nature.” Id.
Meanwhile, the district court held that Defendant Howard, the city
clerk, was entitled to absolute immunity because Plaintiffs’ constitutional
claims arose out of a motion based on a sworn affidavit that she presented
to the state court in a pending lawsuit. The district court explained that the
2
In the alternative, the district court held all Defendants were entitled
to qualified immunity because Plaintiffs’ complaint failed to state a cause
of action under the First Amendment. Observing that the complaint did not
challenge the factual statements contained in Howard’s affidavit, the court
opined that the unrebutted facts attested to in the affidavit suggest
Benavidez sought to harass and intimidate Howard rather than simply
exercise her First Amendment rights: “Defendants are correct in that there
is no First Amendment right to harass or intimidate government officials,
and so Ms. Benavidez’ conduct as described in Ms. Howard’s affidavit
does not . . . constitute protected conduct in a First Amendment analysis.”
Benavidez, 2018 WL 565706, at *7.
6
absolute immunity enjoyed by witnesses in judicial proceedings extends to
witnesses presenting testimony by way of affidavit. Howard’s attorneys
filed the motion for a protective order on her behalf “and it was her sworn
description of the events that transpired—that is, her testimony—that
formed the basis for the requested protective order.” Id. at *6 (emphasis in
original).
III. City Attorney and Assistant City Attorneys
We need not tarry long in disposing of this appeal from the district
court’s final judgment in favor of Defendants Hernandez, Zarr, and
Bullock. See 28 U.S.C. § 1291. Setting aside the obvious and multiple
facial deficiencies in Plaintiffs’ § 1983 complaint, we first address the city
attorney and assistant city attorney’s threshold defense of absolute
immunity as a complete bar to Plaintiffs’ suit. Imbler v. Pachtman, 424
U.S. 409, 419 n.13 (1976) (“An absolute immunity defeats a suit at the
outset, so long as the official’s actions were within the scope of
immunity.”). Our review is de novo. Scott v. Hern, 216 F.3d 897, 908 (10th
Cir. 2000). Public officials who seek absolute immunity, i.e., an absolute
exemption from personal liability for allegedly unconstitutional conduct,
bear the burden of showing that public policy requires an exemption of
such broad scope. Butz v. Economou, 438 U.S. 478, 506 (1978).
The Supreme Court has explained on multiple occasions that
Congress did not intend § 1983 to abrogate immunities recognized at
7
common law by way of “history and reason.” Buckley v. Fitzsimmons, 509
U.S. 259, 268 (1993). “[A]lthough ‘the precise contours of official
immunity’ need not mirror the immunity at common law, we look to the
common law and other history for guidance . . . to discern Congress’ likely
intent in enacting § 1983.” Burns v. Reed, 500 U.S. 478, 493 (1991)
(citation omitted). “In determining whether particular actions of
government officials fit within a common-law tradition of absolute
immunity, or only the more general standard of qualified immunity,” we
apply a “‘functional approach,’ which looks to ‘the nature of the function
performed, not the identity of the actor who performed it.’” Buckley, 509
U.S. at 268 (citation omitted); see also id. at 282 (Kennedy, J., concurring
in part) (citing cases). In other words, our approach concentrates “on the
conduct for which immunity is claimed, not on the harm that the conduct
may have caused or the question whether it was lawful.” Id. at 271.
Where a public official participating in the judicial process is sued in
collateral proceedings, our focus on the effective functioning of our justice
system does not arise from a generalized concern about interfering with the
official’s duties. Rather, our focus arises from a specific concern about
interfering with “conduct closely related to the judicial process.” Burns,
500 U.S. at 493.
The Supreme Court has interpreted § 1983 to provide absolute
immunity for the performance of certain functions “because any lesser
8
degree of immunity could impair the judicial process itself.” Malley v.
Briggs, 475 U.S. 335, 342 (1986). Where providing only qualified
immunity would fail to ensure the unhindered performance of a public
official’s duties essential to the proper functioning of that process, a grant
of absolute immunity is proper. Imbler, 424 U.S. at 427–28 (emphasis
added). Today, “[f]unctions that serve as an ‘integral part of the judicial
process’ or that are ‘intimately associated with the judicial process’ are
absolutely immune from civil suits.” Rogers v. O’Donnell, 737 F.3d 1026,
1031 (6th Cir. 2013) (quoting Imbler, 424 U.S. at 430). “[O]urs is a
‘continuum based approach’ and the ‘more distant a function is from the
judicial process, the less likely absolute immunity will attach.’” Mink v.
Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007).
* * *
Consistent with our functional approach to absolute immunity, such
immunity may extend to various participants in a judicial proceeding,
including government attorneys. In 1976, the Supreme Court first
recognized a prosecuting attorney’s entitlement to absolute immunity in a
§ 1983 suit. Imbler, 424 U.S. at 410. Two years later, the Court held that
“an agency attorney who arranges for the presentation of evidence on the
record in the course of an adjudication is absolutely immune from suits
based on the introduction of such evidence.” Butz, 438 U.S. at 517.
9
Relying on the Court’s reasoning in Imbler and Butz, our sister
circuits have held that absolute immunity also is available to attorneys
defending the government in civil litigation because such immunity is
necessary to achieve the independent judgment and vigorous advocacy vital
to the effective functioning of our adversarial system of justice. See, e.g.,
Auriemma v. Montgomery, 860 F.2d 273, 276 (7th Cir. 1988); Murphy v.
Morris, 849 F.2d 1101, 1105 (8th Cir. 1988); Barrett v. United States, 798
F.2d 565, 572 (2d Cir. 1986). We subsequently recognized absolute
immunity as extending to “government lawyers involved in civil
proceedings.” Robinson v. Volkswagenwerk, 940 F.2d 1369, 1373 n.4 (10th
Cir. 1991); see also Scott, 216 F.3d at 908–10 (holding a county attorney
had absolute immunity from a § 1983 claim arising out of a civil
commitment proceeding).
Paraphrasing Buckley, the rule of absolute immunity as applied to
government attorneys charged with violating § 1983 may be stated
generally as follows: A government attorney’s administrative duties and
those investigatory functions that do not closely relate to an advocate’s
preparation for judicial proceedings are not entitled to absolute immunity.
Rather, absolute immunity shields those acts undertaken by a government
attorney in preparation for judicial proceedings and which occur in
the course of his or her role as an advocate for the government. See
10
Buckley, 509 U.S. at 273; Mink, 482 F.3d at 1261 (reasoning that the
“determinative factor” in the absolute immunity inquiry is “advocacy”).
Applying this rule to the facts of our case, we easily conclude that
Defendants Hernandez, Zarr, and Bullock are entitled to absolute immunity
for their acts of preparing and filing the motion for a protective order. 3
Unquestionably, such acts are “intimately associated” with the judicial
process, falling within the advocacy function of the city attorneys assigned
to defend the city clerk against Plaintiffs’ §1983 action. Imbler, 424 U.S.
at 430. Any lesser immunity could impair the performance of a central
actor—government defense counsel—in the “judicial process.” Malley, 475
U.S. at 343. This possibility of impairment is unacceptable. Moreover, the
public trust of the city attorney’s office might suffer if it were constrained
3
We take judicial notice of the fact that only Defendants Zarr and
Bullock entered their appearances for Howard in Padilla’s state court
action. We further note that Plaintiffs’ § 1983 complaint alleges absolutely
no facts to support its conclusory allegation that the city attorney,
Defendant Hernandez, somehow acted in concert with Defendants Howard,
Zarr, and Bullock to deprive Plaintiffs of their First Amendment rights.
While Hernandez, if involved in the preparation and filing of the
motion for a protective order, is entitled to absolute immunity for the very
same reasons as are Zarr and Bullock, Plaintiffs’ § 1983 claims against
Hernandez from the outset appear in tension with Fed. R. Civ. P. 11(b)’s
pleading requirement that a complaint’s “factual contentions have
evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation
and discovery.” The rules of pleading set out in Fed. R. Civ. P. 8 do “not
require ‘detailed factual allegations,’” but demand “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
11
in making decisions by its attorneys’ own potential liability for damages in
a § 1983 suit. Imbler, 424 U.S. at 424–25.
Absolute immunity for the city attorneys in this case is necessary to
protect their independent judgment by freeing them from the possibility of
harassment and intimidation associated with their defense of the city clerk.
Burns, 500 U.S. at 494 (“Absolute immunity is designed to free the judicial
process from the harassment and intimidation associated with litigation.”).
This, in turn, shields and protects the state court’s truth-finding mission
and decision-making process. Accordingly, the underlying merit or
ostensible reach of the motion about which Plaintiffs persistently complain
is beside the point. The Supreme Court has acknowledged that “for some
‘special functions,’ it is better to leave unredressed the wrongs done by
dishonest [officials] than to subject those who try to do their duty to the
constant dread of retaliation.” Id. at 484 (citation omitted). “At the same
time, the safeguards built into the judicial process tend to reduce the need
for private damages actions as a means of controlling unconstitutional
conduct.” Butz, 438 U.S. at 512.
Of course, the possibility of professional and criminal redress, as
well as monetary and other sanctions, remain available against those who
would abuse the judicial process. Absolute immunity, however, may leave
the “genuinely wronged” without civil redress in a collateral proceeding
12
against those public officials responsible. 4 Imbler, 424 U.S. at 427. But
qualifying the civil immunity of the city attorneys in their roles as
advocates for the city would “disserve the broader public interest.” Id.
Such qualification might prevent the “vigorous and fearless” defense of the
city clerk that is essential to the proper functioning of both the judicial and
election processes. Id. The Second Circuit said it best:
[The government defense attorney’s] image may not be
comparable to that of a prosecutor, but it is not difficult to
conceive of situations where, although the government is the
defendant, its counsel asserts [matters] tending to upset or excite
resentment on the part of the civil plaintiff. . . . Although
government defense counsel, not having selected the other party
as the target of litigation, is in a more passive position than a
prosecutor . . . he nevertheless functions in an adversarial arena
where “there is, if not always a winner, at least one loser,” and
since he is charged with a public trust he should not be inhibited
in the faithful performance of his duties by the threat of
harassing lawsuits against him. His function as a government
advocate therefore entitles him to absolute immunity, which is
“necessary to assure that advocates can perform their respective
functions without harassment or intimidation.”
Barrett, 798 F.2d at 572 (citation and ellipses omitted).
Accordingly, we hold a government defense attorney who, in the
course of a civil adjudication, prepares a motion and arranges for the
presentation of evidence on the court record by way of affidavit in support
of the motion, is absolutely immune from a collateral § 1983 suit for
4
We in no way suggest Plaintiffs were “genuinely wronged” when
Defendant Howard filed her motion for a protective order.
13
damages based on the filing of such motion and affidavit. See Butz, 438
U.S. at 517.
IV. City Clerk
For the claims against Defendant Howard, we affirm the dismissal
based on qualified immunity because Plaintiffs did not suffer a
constitutional violation.
Under the first prong of qualified immunity, Plaintiffs bear a burden
to plead facts showing that the defendant violated a constitutional right. 5
Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). Plaintiffs invoke
the First Amendment right to protection from retaliation for engaging in
protected activity. This claim requires allegations indicating that the
conduct would have chilled a person of ordinary firmness from engaging in
a protected activity. 6 Buck v. City of Albuquerque, 549 F.3d 1269, 1292
(10th Cir. 2008).
The retaliation claims are based on Howard’s filing of a motion for a
protective order in state court. In this motion, Howard asked the state court
to prohibit Plaintiffs and others “from engaging in conduct directed at
5
Under the second prong of qualified immunity, Plaintiffs must show
that the right was “clearly established” when the public official acted.
Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
6
Plaintiffs must also plead that (1) they were engaging in a protected
activity and (2) the public official’s action was substantially motivated by
the plaintiffs’ protected activity. Buck v. City of Albuquerque, 549 F.3d
1269, 1292 (10th Cir. 2008).
14
[Howard’s] person, which a reasonable person would find to be annoying,
alarming, hostile or menacing in nature.” Id. at 19. Though the state court
never ruled on the motion, Plaintiffs argue that the mere filing of the
motion created a chilling effect.
This argument is foreclosed by Shero v. City of Grove, Okla., 510
F.3d 1196 (10th Cir. 2007). In Shero, the City of Grove initiated a state-
court proceeding against a citizen by filing a “Motion for Protective Order
and Order Determining Certain Materials Exempt from Public Disclosure.”
510 F.3d at 1199. The state district court treated this motion as a complaint
for a declaratory judgment. Id. In reaction to this filing, the citizen sued in
federal court for retaliation in violation of the First Amendment, claiming
that the city’s filing of a declaratory judgment suit had chilled him from
exercising his First Amendment rights. Id. at 1203. The federal district
court granted summary judgment to the city and we affirmed, holding that
“being properly named as a defendant in a declaratory judgment suit,
however styled, would not chill a person of ordinary firmness from
continuing to engage in constitutionally protected activity.” Id. at 1204.
Shero presented a stronger retaliation claim than the one here. In
Shero, the city began the lawsuit; here, Padilla began the lawsuit. Yet the
panel in Shero held as a matter of law that the city’s filing of a declaratory
judgment suit would not chill a person of ordinary firmness. Under Shero,
Howard’s motion for a protective order would not chill a person of
15
ordinary firmness. So Plaintiffs did not allege a violation of the First
Amendment, and the absence of such an allegation entitles Howard to
qualified immunity. We thus affirm the dismissal of the claim against
Howard based on qualified immunity. 7
V. Conclusion
For the foregoing reasons, we affirm the district court’s judgment. 8
7 Defendant Howard relies not only on qualified immunity but also on
absolute immunity. Given Howard’s entitlement to qualified immunity, we
need not decide whether she also enjoys absolute immunity. See, e.g.,
Ashcroft v. Al–Kidd, 563 U.S. 731, 744 (2011) (“Because [the defendant]
did not violate clearly established law, we need not address the more
difficult question whether he enjoys absolute immunity.”) We thus express
no opinion or suggestion as to Howard’s separate argument involving
absolute immunity.
8
In their opening appellate brief, Plaintiffs also contend that the
district court violated the First Amendment by orally suggesting that
Defendants consider seeking attorney’s fees if Plaintiffs appeal. Plaintiffs’
contention is meritless.
16
No. 18-2027, Benavidez v. Howard
BALDOCK, Circuit Judge, concurring in the judgment only as to Part IV.
I concur fully in Parts I–III of the Court’s opinion. As to Part IV, I concur only in
the Court’s judgment affirming dismissal of the claims against Defendant Howard.
***
The Court holds Defendant Howard, the city clerk, is entitled to qualified immunity
because Plaintiffs’ § 1983 complaint fails to allege a constitutional violation against her. In
disposing of the case against her on such ground, however, the Court inexplicably bypasses
the question of whether Defendant Howard is entitled to the greater protections of absolute
immunity. I would not bypass this question, but instead would decide under the facts of this
case that she is entitled to absolute immunity from § 1983 liability both as a party to the state
court proceedings and a witness offering evidence therein. A public official whose attorneys
recommend that she file a motion supported by her verified affidavit should not have to
inquire of her attorneys whether she might be sued in a collateral action if she files the
motion and affidavit. After today, I wonder if an attorney must inform such a client that any
motion filed in support of the client’s cause or any evidence presented in support thereof may
result in her adversary suing the client for damages in a collateral § 1983 action?
Let us begin with Defendant Howard’s role as a party to the state court proceedings
out of which this § 1983 action arises. The city attorney’s office represented Defendant
Howard in her capacity as city clerk. This Court correctly grants the named Defendants from
that office, Hernandez, Zarr, and Bullock, absolute immunity from Plaintiffs’ § 1983 claims.
Of course, the foundation upon which the client-attorney relationship rests is that of principal
and agent. The agent is the principal’s representative. Whatever functions the agent
performs, therefore, in the prosecution of the business for which he has been summoned, are
the acts of the principal whom he represents. La Abra Silver Mining Co. v. United States,
175 U.S. 423, 498 (1899). Thus, the reason escapes me why Defendant city attorneys, as
agents of Defendant Howard, are entitled to absolute immunity for their role in the filing of
her motion for a protective order and sworn affidavit, but Defendant Howard, the principal
whom they represent, is not. Protecting the attorney but not the client in cases like this one
is not only nonsensical but also wrought with peril.
Whether absolute immunity protects a public official engaged in litigation depends
not upon the identity of the official as a party or witness, but only upon “the nature of
the function performed.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). We ask
(1) whether the function performed constitutes an integral part of the judicial process, and
if so, (2) whether any degree of immunity less than absolute, i.e., qualified immunity, “could
impair the judicial process itself.” Malley v. Briggs, 475 U.S. 335, 342 (1986) (emphasis
added). The filing of a motion for a protective order and sworn affidavit to support it in the
context of ongoing civil litigation, such as occurred here, unquestionably constitutes an
integral part of the judicial process. And failing to cloak the public official filing the motion
and affidavit with absolute immunity clearly threatens to impair the judicial process by
throwing a monkey wrench into the attorney-client relationship.
2
Absolute immunity for a party filing a motion, like Defendant Howard, promotes the
public policy underlying such immunity by inhibiting interference between client and counsel
engaged in adversarial litigation. Uninhibited and unchilled communication between client
and counsel is an essential ingredient of a fair and just judicial process. The failure to
provide a public official absolute immunity from § 1983 liability for filing a motion while
cloaking her attorneys with such immunity threatens to create a conflict between client and
counsel, in turn jeopardizing the independence of counsel and vigorous advocacy demanded
by the Code of Professional Responsibility and vital to the effective functioning of our
adversarial system and its truth-finding mission. Foremost, the client may worry about being
sued collaterally if she files a motion, while her counsel, who enjoys absolute immunity, may
think the motion is necessary to an effective prosecution or defense. Alternatively, counsel
may worry about being sued in malpractice if the client is subsequently charged in a
collateral action for filing a motion then thought to be necessary to an effective prosecution
or defense of the underlying lawsuit. Or in a worst case scenario, an adversary with a weak
hand may opt to pursue a collateral action in order to create tension between client and
counsel and divert attention away from the deficiencies in her case. The mere possibility that
the client may have an interest adverse to her attorney jeopardizes the attorney-client
relationship and, in turn, the effective functioning of the judicial process.
Here, Defendant Howard filed a motion through and upon the advice of her counsel
that she believed necessary to ensure her ability to present an effective defense to Plaintiff
3
Padilla’s state court claims. The filing of this motion alone is enough to establish her
entitlement to absolute immunity from a § 1983 collateral lawsuit based on the contents of
the motion. Nonetheless, let us not forget Defendant Howard’s role as a witness in addition
to her role as a party to the state court proceedings. To render testimony in her own defense,
Defendant Howard supported her motion with a sworn affidavit. This affidavit constituted
her personal appearance before the state court. Black’s Law Dictionary 1704 (10th ed. 2014)
(defining “testimony” as “[e]vidence that a competent witness under oath or affirmation
gives at trial or in an affidavit or deposition”); Webster’s Third New Int’l Dictionary 2362
(1981) (including “a written attestation” within the definition of “testimony”).
Unsurprisingly, “[t]he immunity of parties and witnesses from subsequent damages
liability for their testimony in judicial proceedings was well established in English common
law” undoubtedly because the function they performed was an integral part of the judicial
process. Briscoe v. LaHue, 460 U.S. 325, 330–31 (1983). This only stands to reason for
both parties and witnesses who aid the truth-seeking mission of the judiciary should be no
more liable to collateral suits for what they say and do in the discharge of their respective
functions in the judicial arena than are judges and lawyers. Yaselli v. Goff, 12 F.2d 396, 406
(2d Cir. 1926), aff’d, 275 U.S. 503 (1927) (per curiam). As Lord Mansfield declared nearly
250 years ago when speaking of the common law’s “litigation privilege:” “Neither party,
witness, counsel, jury, nor judge, can be put to answer . . . for words spoken in office.” King
v. Skinner, 98 Eng. Rep. 529, 530 (1772). The rationale for Lord Mansfield’s proclamation
4
as well as the Supreme Court’s subsequent absolute immunity decisions—to free the judicial
process of harassment and intimidation that might alter a court’s decision-making process
and truth-finding mission—applies equally to parties and other witnesses presenting sworn
evidence before a court. Forrester v. White, 484 U.S. 219, 226 (1988). Any erosion of the
rule of absolute immunity for witnesses might invite new claims by unhappy litigants. At the
very least, such erosion as occurs today may deter individuals in a position to offer valuable
testimony to the court, thereby undermining the truth-seeking function of the original
proceeding by depriving the court of candid, objective, and undistorted evidence.
***
The public policy behind absolute immunity in the present context is the protection
of the judicial process itself. Such immunity bars claims that may very well deter public
officials engaged in the process from performing their respective functions in such a manner
that the truth is free to prevail. The Court turns a blind eye to all this and fails to recognize
that its refusal to grant, let alone consider, absolute immunity for Defendant Howard poses
a real threat to the proper functioning of the judicial process. The bottom line is simply this:
If an adversary does not like what the opposing party presents to a court by way of motion,
the adversary must oppose the motion and take whatever other action deemed necessary in
the underlying lawsuit. This places the decision to sanction a party or witness under the
authority of the presiding judge assigned to adjudicate the motion rather than in the hands of
a disgruntled adversary such as Plaintiffs in this case.
5
If the risk of being haled into federal court to defend a collateral § 1983 suit is added
to the deterrent of being sanctioned by the state court, or charged with perjury or subornation
(absolute immunity does not protect criminal conduct), the risk of self-censorship detrimental
to the court’s fact-finding mission becomes far too great. For this reason, I would hold as
follows: A public official who, in the course of civil adjudication, assists her attorneys in
preparing a motion on her behalf and arranging for the presentation of evidence on the record
by way of a supporting affidavit, is absolutely immune from a collateral § 1983 suit for
damages based on the filing of such motion and affidavit.
6