Malina v. Gonzales , 994 F.2d 1121 ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 91-3757
_________________
THOMAS MARTIN MALINA
and
MRS. THOMAS MARTIN MALINA,
Plaintiffs-Appellants,
VERSUS
JUDGE DOUGLAS GONZALES
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________
(June 25, 1993)
Before SMITH and EMILIO M. GARZA, Circuit Judges, and RAINEY*,
District Judge:
JOHN D. RAINEY, District Judge:
This is an appeal from the denial of a motion to dismiss based
on the district court's finding that a state district judge did not
have immunity for his actions.
While driving home from work one night on Interstate 10,
Plaintiff-Appellee Thomas Malina passed to the right of a slow
moving vehicle. Malina honked his horn and motioned to the driver,
who was Defendant-Appellant Judge Douglas Gonzales, of the
Nineteenth Judicial District court for the Parish of East Baton
Rouge, to move out of the "fast" lane.
Upset by Malina's honking, Judge Gonzales placed a flashing
*District Judge of the Southern District of Texas, sitting by
designation
red light on his dashboard and pursued Malina's vehicle until
Malina pulled over to the side of the road. Judge Gonzales opened
the passenger side door of Malina's car and demanded to see
Malina's driver's license. In response, Malina asked to see Judge
Gonzales' identification. Judge Gonzales showed Malina his court
I.D. and told Malina he had the authority to arrest him. Malina
then drove off.
Three hours later, a Baton Rouge city police officer appeared
at Malina's home and told Malina that Judge Gonzales wanted to see
him in his court at 9:30 a.m. the next day. The officer stated
that he was there unofficially as a favor to Judge Gonzales, but
the Judge could issue a bench warrant for Malina's arrest if Malina
did not appear in court.
Malina appeared at court the next morning, but found the
courtroom closed to the public. When Judge Gonzales arrived, he
instructed Malina to wait in the empty courtroom. A few minutes
later, Judge Gonzales, a bailiff, and a deputy sheriff entered the
courtroom. The bailiff said "all rise," and Judge Gonzales
instructed Malina to approach the bench. No audio or stenographic
record was made of the proceeding.
According to Malina, the Judge read from a book and stated
that judges are police officers with the authority to arrest
individuals. The Judge handed a green slip of paper to the bailiff
and told Malina to appear before the duty-judge on May 2, 1988,
2
concerning traffic violations. Malina asked with what he had been
charged, and Judge Gonzales responded with "fleeing to allude,"
"resisting an officer," "public endangerment," "disobeying an
officer," "reckless driving," and "leaving the scene." The Judge
added that the charges would convince Malina to obey an order and
pull over the next time anyone with a flashing light pulled
alongside him. Malina responded that he did not feel comfortable
stopping for unmarked vehicles with flashing lights because anyone
can buy such a light.
At this point, Judge Gonzales cited Malina with contempt and
sentenced him to five hours in jail. Malina was handcuffed,
fingerprinted, photographed, and imprisoned.
Malina and his wife brought suit against Judge Gonzales in his
official capacity and individually. In response, Judge Gonzales
filed a motion to dismiss based upon official immunity. The
District Court of the Eastern District of Louisiana denied Judge
Gonzales' motion to dismiss the claim against him in his individual
capacity, on the ground that the Judge was not entitled to judicial
or qualified immunity. Judge Gonzales now appeals the denial of
his immunity claim. We affirm in part and reverse in part.
I. Standard of Review
The denial of a motion to dismiss raising a colorable claim of
immunity is appealable under the collateral order exception to the
finality requirement of 28 U.S.C. § 1291. Williams v. Brooks, 945
F.2d 1322, 1325 (5th Cir. 1991), cert. denied, 112 S. Ct. 1996
(1992). The district court's denial of a motion to dismiss on
3
immunity grounds presents a question of law, reviewable de novo.
Id.
II. Judicial Immunity
Absolute judicial immunity extends to all judicial acts that
are not performed in the clear absence of all jurisdiction. Adams
v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985), cert. denied, 474
U.S. 1101 (1986). Thus, a judge has no immunity (1) for actions
taken outside of his judicial capacity, or (2) for actions that are
judicial in nature, but occur in the complete absence of all
jurisdiction. Mireles v. Waco, 112 S. Ct. 286, 288 (1991). Judge
Gonzales' actions form four separate incidents. The first is the
stop on the highway. The second is Judge Gonzales' use of an
officer to unofficially summon Malina. The third is the charging
of Malina with various "crimes," and the fourth is the issuance of
the contempt citation and five hour jail sentence.
In determining whether Judge Gonzales' actions were "judicial
in nature," this Court considers four factors: (1) whether the
precise act complained of is a normal judicial function; (2)
whether the acts occurred in the courtroom or appropriate adjunct
spaces such as the judge's chambers; (3) whether the controversy
centered around a case pending before the court; and (4) whether
the acts arose directly out of a visit to the judge in his official
capacity. McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972).
The four factors are to be broadly construed in favor of immunity,
and immunity should not be denied where the denial carries the
4
potential of raising more than a frivolous concern in a judge's
mind that to take proper action might expose him to personal
liability. Adams, 764 F.2d at 297. In some situations, immunity
is to be afforded even though one or more of the McAlester factors
is not met. Id.
The relevant inquiry regarding the first factor )) whether the
precise act complained of is a normal judicial function )) is to
examine the "nature and function" of the act, not the act itself.
Mireles, 112 S. Ct. at 288-89. The Court is to look to the
particular act's relation to a general function normally performed
by a judge. Id.
Except for the issuance of the contempt citation and the
sentencing, none of Judge Gonzales' actions were judicial acts for
immunity purposes. The first three incidents are not closely
related to a general judicial function. Peace officers, not
judges, stop motorists on the highway, and prosecutors, not judges,
set the judicial machinery in motion by charging someone with a
crime. It is well settled that charging a defendant is a
prosecutorial function, not a judicial function. See Lopez v.
Vanderwater, 620 F.2d 1229, 1235 (7th Cir.), cert. denied, 449 U.S.
1028 (1980). Additionally, Judge Gonzales' private use of an
officer to unofficially summon Malina is not a judicial act, and is
not closely related to a general judicial function. Consequently,
Judge Gonzales can claim judicial immunity for neither the stop,
the summons, nor the charging.
Judge Gonzales can, however, claim judicial immunity for the
5
issuance of the contempt citation and the five hour jail sentence.
Citing someone for contempt is an act normally performed by a
judge. Adams, 764 F.2d at 298. Likewise, issuing a sentence is a
general judicial function. Lopez, 620 F.2d at 1235 (judge immune
for actions of arraigning, convicting and sentencing). Both the
contempt citation and the sentencing were "normal judicial
functions." Furthermore, the contempt citation and the sentencing
occurred in the courtroom and arose directly from Malina's visit to
the Judge in his official capacity. Malina's appearance at court,
despite the Judge's highly irregular "summons," was a visit to the
Judge in his "official capacity" as a judge. See, Adams, 764 F.2d
at 297. Consequently, Judge Gonzales' actions pass the "judicial
nature" prong of the Mireles inquiry.
The second prong of the Mireles test states that a judge will
lose his immunity if his judicial act occurred in the complete
absence of all jurisdiction. Thus, this Court must determine
whether Judge Gonzales had some subject-matter jurisdiction to
issue the contempt citation and sentence.1
Where a court has some subject-matter jurisdiction, there is
sufficient jurisdiction for immunity purposes. Adams, 764 F.2d at
298. The question is whether Judge Gonzales merely acted in excess
of his authority in issuing the contempt citation and sentence, and
is thus protected by judicial immunity, or whether he acted in
1
Viewing the case as a question of subject-matter
jurisdiction is consistent with the position taken by a majority
of the Circuits and the Supreme Court. See, e.g., Adams, 764
F.2d at 298; Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982);
and Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871).
6
clear absence of all jurisdiction. See, My. Schwartz & J. Kirklin,
I Section 1983 Litigation § 9.3 at 451 (1911). It is important to
note that "judicial immunity is not overcome by allegations of bad
faith or malice." Mireles, 112 S. Ct. at 288. It is the Judge's
actions alone, not intent, that we must consider.
By law, a judge in Louisiana may hold someone in contempt and
sentence him for "[c]ontumacious, insolent, or disorderly behavior
toward the judge." La. Code Civ. Proc. Ann. art. 222. See also,
La. Code Civ. Proc. Ann. arts. 221 and 223. Thus, Judge Gonzales
had some subject-matter jurisdiction over Malina's actions within
his courtroom. Malina argues, however, that he was not sentenced
for his behavior within the courtroom, but that he was sentenced
for what occurred on the highway.
The district court assumed Malina's version of the facts as
true, and found that Judge Gonzales essentially "sentenced" Malina
to jail for the "charges" brought against him. It is not clear
from the record if charges were ever filed against Malina. For the
purpose of a motion to dismiss, however, this Court must assume all
well-pleaded allegations as true. Tanglewood East Homeowners v.
Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988). Thus,
the question is whether Judge Gonzales acted with the complete
absence of all jurisdiction, having absolutely no subject matter
jurisdiction to sentence Malina for "fleeing to allude," "resisting
an officer," "public endangerment," "disobeying an officer,"
"reckless driving," and "leaving the scene."
A review of the Louisiana Code reveals that Judge Gonzales did
7
have some subject-matter jurisdiction over the case. According to
Article 5, section 16 of the State Constitution, a district court
has original jurisdiction of all civil and criminal matters, except
as otherwise authorized by the Constitution. The charges brought
against Malina did not fall within the "otherwise authorized"
exception. Accordingly, Judge Gonzales had at least some subject-
matter jurisdiction over Malina's case.
Judge Gonzales' illegitimate prior acts of arrest and summons
are ill-received by this Court, but they did not completely deprive
him of subject-matter jurisdiction. See Lopez, 620 F.2d at 1233.
Even "grave procedural errors do not deprive a judge of all
jurisdiction." Stamp v. Sparkman, 435 U.S. 349, 359 (1978).
Judge Gonzales' actions of citing Malina with contempt and
sentencing him to five hours in jail are judicial acts, and they
were not taken in the clear absence of subject-matter jurisdiction.
Thus, under no set of facts can Malina overcome Judge Gonzales'
entitlement to immunity for the contempt citation and sentence.
Accordingly, we reverse on this point.
III. Qualified Immunity
Generally, the qualified immunity inquiry focuses on whether
the contours of the right allegedly violated were sufficiently
clear such that a reasonable official would understand that his
action violated that right. Mouille v. City of Live Oak, 918 F.2d
548, 551 (5th Cir. 1990). This Court must determine if Judge
Gonzales' actions violated a constitutional right, and if so, would
a reasonable person have known he was violating that right.
8
Because we have found that Judge Gonzales had absolute
judicial immunity in issuing the contempt citation, we do not need
to reach the qualified immunity inquiry. We need only discuss
whether the stop on the interstate and the summons into court are
actions protected by qualified immunity.
Judge Gonzales argues that he did not violate Malina's Fourth
Amendment rights on the interstate because no seizure occurred. A
seizure can occur, however, through physical force or a "show of
authority." California v. Hodari D., 111 S. Ct. 1547, 1552 (1991).
Judge Gonzales stopped Malina on the interstate by flashing a red
light, which is a show of authority. Thus, Judge Gonzales'
argument is without merit.
Judge Gonzales further argues that even if a seizure occurred,
a seizure must be unreasonable to create a constitutional
violation. See, Brower v. County of Inyo, 489 U.S. 593, 599,
(1989). Again, accepting Malina's version of the facts as true,
the stop was unreasonable. Judge Gonzales stopped Malina because
Malina honked his horn and motioned to the Judge to change lanes.
This does not give rise to probable cause or reasonable suspicion.
The facts simply do not support Judge Gonzales' contentions that
the stop was reasonable and proper.
Because a constitutional violation occurred, we must address
the immunity inquiry.
Ultimately, Judge Gonzales is not entitled to make a claim of
qualified immunity for he was not a peace officer authorized to
stop Malina. Judge Gonzales is no different than any other person
9
who purchases a red light and stops people on the interstate. This
finding is consistent with our decision in Brewer, 692 F.2d at 396,
in which we held that a Justice of the Peace had no authority to
pursue and arrest the plaintiff, and thus no immunity for his
actions.
Judge Gonzales attempts to show that he had authority under
Louisiana law to arrest Malina, but the Judge's argument fails.
The only authority cited by Judge Gonzales is Louisiana's murder
statute, which defines first degree murder as the killing of a
human being "when the offender has a specific intent to kill or to
inflict great bodily harm upon a . . . peace officer engaged in the
performance of his lawful duties." La. Rev. Stat. Ann.,
§ 30(A)(2). The statute includes "judge" in its definition of
"peace officer," but specifically limits its definition of peace
officer "[f]or the purposes of" § 30(a)(2). La. Rev. Stat. Ann.,
§ 30(b). Thus, this statute has no bearing on the case before us.
Moreover, under the "Peace Officer Standards and Training"
section of the Louisiana annotated statutes, "peace officer" is
defined as:
any full-time appointed or commissioned employee of a
sheriff's department, municipal police department, or the
State Police, whose employment duties actually include
the making of arrests, the performing of searches and
seizures, or the execution of criminal warrants, and
which is responsible for the prevention or detection of
crime or for the enforcement of the penal, traffic, or
highway laws of the state.
La. Stat. Ann., § 2402(1). Additionally, under section 2405, every
peace officer must "successfully complete a basic law enforcement
training course." As the District Court noted, Judge Gonzales has
10
not argued that he successfully completed any training course in
the area of law enforcement.
Consequently, this Court finds that Judge Gonzales is not
entitled to claim qualified immunity, for under a fair, and even
charitable reading of Louisiana law, judges have no authority to
make arrests. The district court correctly denied Judge Gonzales'
motion to dismiss on qualified immunity grounds with regard to the
interstate incident.
Judge Gonzales has not claimed immunity for the coercive
summons by the police officer and the charging of Malina with
various offenses, and he does not argue that a constitutional
violation did not occur. Therefore, we affirm the district court's
denial of qualified immunity as to this aspect of the case as well.
IV.
This case is affirmed in part and reversed in part.
11
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting
in part.
I concur in almost every aspect of the majority opinion except
one: I would hold that Judge Gonzales is not absolutely immune
from prosecution for holding Malina in contempt of court.1 This
case is not a case of "excess jurisdiction,"2 but rather a case of
"clear absence of all jurisdiction."3 Crucial are the following
1
I am acutely aware of the possible misuses of this dissent. As
Judge Goldberg correctly pointed out:
[T]he opening of any inroads weakening judicial immunity could
have the gravest consequences to our system of justice. Every
judicial act is done "under color of law;" absent the doctrine,
every judicial error affecting a citizen's rights could thus
ultimately subject the judge to section 1983 liability. To be
sure, we can conjure converse chambers of horrors, but we cannot
allow that to erode the necessary features of the immunity. That
judicial immunity is sometimes used as an offensive dagger rather
than a defensive shield must not justify derogating its
inviolability. Even though there may be an occasional diabolical
or venal judicial act, the independence of the judiciary must not
be sacrificed one microscopic portion of a millimeter, lest the
fears of section 1983 intrusions cow the judge from his duty.
McAlester v. Brown, 469 F.2d 1280, 1283 (5th Cir. 1970). And like Judge Hill,
I would caution those who read this opinion to be wary that this dissent "is
exceedingly narrow and is tailored to this, the rarest of factual settings."
Harper v. Merckle, 638 F.2d 848, 859 (5th Cir. 1981) (footnote omitted).
2
See Stump v. Sparkman, 435 U.S. 354, 356-357, 98 S. Ct. 1099,
1105, 55 L. Ed. 2d 331 (1978) ("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.'" (citation and footnote
omitted)).
3
My disagreement with the majority opinion does not stem from the
standard of review. The majority correctly states that "[a]bsolute judicial
immunity extends to all judicial acts that are not performed in the clear
absence of all jurisdiction[,]" or, conversely, "a judge has no immunity (1)
for actions taken outside of his judicial capacity, or (2) for actions that
are judicial in nature, but occur in complete absence of all jurisdiction."
Maj. op. at 4 (citations omitted).
The majority also properly focuses on the four factors first
articulated by Judge Goldberg in McAlester to determine whether Judge Gonzales
acted in his judicial capacity))(1) whether the precise act complained of is a
normal judicial function; (2) whether the acts occurred in the courtroom or
appropriate adjunct spaces such as the judge's chambers; (3) whether the
controversy centered around a case pending before the court; and (4) whether
the acts arose directly out of a visit to the judge in his official capacity.
12
facts:4
[A] Baton Rouge city police officer appeared at Malina's
home and told Malina that Judge Gonzales wanted to see
him in his court at 8:30 a.m. the next day. The Officer
stated that he was there unofficially as a favor to Judge
Gonzales, but the Judge could issue a bench warrant for
Malina's arrest if Malina did not appear in court.
Malina appeared at court the next morning, but found the
courtroom closed to the public. When Judge Gonzales
arrived, he instructed Malina to wait in the empty
courtroom. A few minutes later, Judge Gonzales, a
bailiff, and a deputy sheriff entered the
courtroom. . . .
[Judge Gonzales] read from a book and stated that judges
are police officers with the authority to arrest
individuals. The Judge handed a green slip of paper to
the bailiff and told Malina to appear before the duty-
judge on May 2, 1988, concerning traffic violations.
Malina asked with what he had been charged, and Judge
Gonzales responded with "fleeing to allude," "resisting
an officer," "public endangerment," "disobeying an
officer," "reckless driving," and "leaving the scene."
The Judge added that the charges would convince Malina to
obey an order and pull over the next time anyone with a
flashing light pulled alongside him. Malina responded
that he did not feel comfortable stopping for unmarked
vehicles with flashing lights because anyone can buy such
a light.
At this point, Judge Gonzales cited Malina with contempt
and sentenced him to five hours in jail. Malina was
handcuffed, fingerprinted, photographed, and imprisoned.
McAlester, 469 F.2d at 1282. I also agree that these four factors should be
broadly construed and that immunity may be afforded although one or more
factors is not met. See Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985).
The question presented is not whether Judge Gonzales' action in holding Malina
in contempt and sentencing him to five hours in jail was "judicial in nature,"
but rather whether it occurred "in complete absence of all jurisdiction." But
see infra n.7.
4
The district court correctly held, in "deciding this [Rule
12(b)(6)] motion to dismiss, the court must accept `all allegations of the
complaint . . . as true, along with any reasonable inferences that may be
drawn therefrom.'" See Record Excerpts for Gonzales tab 4, at 6 (quoting
Watts v. Grayes, 720 F.2d 1416, 1419 (5th Cir. 1983)). And so must we. See
Tanglewood East Homeowners v. Charles Thomas, Inc., 849 F.2d 1568, 1572 (5th
Cir. 1988).
13
Maj. op. at 2-3.
Although I agree that Judge Gonzales, as a Louisiana state
judge, had the power to punish for contempt, see La. Code Civ.
Proc. Ann. art. 222 (West 1960), and that the issuance of the
contempt citation occurred within a courtroom, no case was pending
before Judge Gonzales.5 He therefore lacked subject matter
jurisdiction6 for the purpose of judicial immunity. See Bradley v.
Fisher, 80 U.S. (13 Wall.) 335, 351 (1871); Adams, 764 F.2d at 298;
Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982). Moreover, Judge
Gonzales' exercise of his contempt power presupposed, rather than
conferred subject-matter jurisdiction.7
The only reason Malina was in the courtroom was because a
Baton Rouge police officer))on an unofficial visit on behalf of
Judge Gonzales))asked Malina to appear the next day. The
jurisdiction prong for judicial immunity requires that judges
5
Judge Gonzales' finding of contempt was a direct result of
Malina's reaction to the charges and Judge Gonzales' admonition "that the
charges would convince Malina to obey an order and pull over the next time
anyone with a flashing light pulled alongside him." See Maj. op. at 5. "It
is well settled that charging a defendant is a prosecutorial function, not a
judicial function." Id., (citing Lopez v. Vanderwater, 620 F.2d 1129, 1235
(7th Cir.), cert. denied, 449 U.S. 1028 (1980)). As a prosecutor, Judge
Gonzales had no authority to hold Malina in contempt.
6
See La. Code Civ. Proc. Ann. art. 2 (West 1960) ("Jurisdiction
over the subject matter is the legal power and authority of a court to hear
and determine a particular class of actions or proceedings, based upon the
object of the demand, the amount in dispute, or the value of the right
asserted.").
7
See La. Code Civ. Proc. Ann. art. 221 (West 1960) ("A contempt of
court is any act or omission tending to obstruct or interfere with the orderly
administration of justice, or to impair the dignity of the court or respect
for authority."); see also La. Code Crim. Proc. Ann. art. 20 (West 1991)
(same). See also Detournion v. Dormenon, 1 Mart., O.S. (1810) (holding that
an insult to a parish judge acting as an auctioneer, is not a contempt of him
in his judicial capacity, and cannot be punished); Junius Hart Piano House v.
Ingman, 44 So. 850, 852 (citing with approval Detournion).
14
possess the authority to perform actions relating to a matter
before them. See, e.g., Mireles v. Waco, ___ U.S. ___, 112 S. Ct.
286, 289, ___ L. Ed. 2d ___ ("[S]uch an action))taken in the very
aid of the judge's jurisdiction over a matter before him))cannot be
said to have been taken in the absence of jurisdiction." (emphasis
added)); Stump v. Sparkman, 435 U.S. 349, 351-52, 98 S. Ct. 1099,
1102-03, 55 L. Ed. 2d 331 (1978) (stating that sterilization
petition was before state court judge); Adams, 764 F.2d at 298
(stating that the objectionable contempt order arose out of a
criminal case involving the plaintiff's sons, over which the judge
presided). Moreover, Judge Gonzales's actions did not occur while
he had subject matter jurisdiction over any other claim. See
Adams, 764 F.2d at 297 n.2 (citing as an example of a judicially
immune action, the situation where a judge cites a person raising
a disturbance immediately outside his courtroom window for
contempt, assumedly while ongoing proceedings are before the
judge). Therefore, at the time Judge Gonzales cited Malina for
contempt, he was acting in "clear absence of all jurisdiction."8
8
I am also somewhat skeptical of the majority's
conclusion that the issuance of the contempt citation was a
judicial act. An application of the four McAlester factors
reveals that the issuance of the contempt citation did not arise
from: (1) a case pending before Judge Gonzales; or (2) a visit
to Judge Gonzales in his official capacity. Although Malina was
told))by a Baton Rouge police officer on an unofficial visit))to
report to Judge Gonzales's courtroom, Malina was never told why
he was being "summoned," or that he was going to be charged with
a crime. In a case involving similarly egregious facts, we
focused on these particular McAlester factors to support our
holding that certain actions by a judge were not "judicial acts."
See Harper, 638 F.2d at 858-59 (emphasizing third and fourth
McAlester factors because the determination of what constitutes a
"judicial act," must include a consideration of the "expectations
15
Furthermore, the factors that support immunity for judicial
acts are not implicated by Judge Gonzales's conduct. As Chief
Justice Warren stated:
It is a judge's duty to decide all cases within his
jurisdiction that are brought before him, including
controversial cases that arouse the most intense feelings
in the litigants. His errors may be corrected on appeal,
but he should not have to fear that unsatisfied litigants
may hound him with litigation charging malice or
corruption. Imposing such a burden on judges would
contribute not to principled and fearless decisionmaking
but to intimidation.
See Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L.
Ed. 2d 288 (1967); see also Thomas v. Sams, 734 F.2d 185, 189 (5th
Cir. 1984) (quoting Pierson). There was no case pending before
Judge Gonzales when he held Malina in contempt. Thus, the policy
behind judicial immunity))encouragement of "fearless
decisionmaking" free from the intimidation of vexatious
litigation))has no bearing on Judge Gonzales's conduct.
Conversely, the dangers implicit in his conduct))over-reaching from
the joinder of executive and judicial powers))have been apparent
since before the Constitution. See The Federalist No. 47, at 303
(James Madison) (Clinton Rossiter ed., 1961) ("Were the power of
judging joined . . . to the executive power, the judge might behave
with all the violence of an oppressor." (quoting Montesquieu)).
I would therefore hold that Judge Gonzales is not judicially
immune for the issuance of the contempt citation and sentencing,
of the parties"). But see Adams, 764 F.2d at 298 n.4 (noting
that Harper's reliance on the personal motivation of the judge in
arriving at its holding was inconsistent with Supreme Court and
Fifth Circuit precedent).
16
because these "actions . . . [were] taken in the complete absence
of all jurisdiction." Mireles, ___ U.S. at ___, 112 S. Ct. at 288.
Accordingly, I would affirm the district court's denial of the
motion to dismiss in its entirety.9
9
For the reasons stated in this dissent, I would also affirm the
district court's holding denying Judge Gonzales qualified immunity on the
issue of Malina's contempt and sentence. See Anderson v. Creighton, 483 U.S.
635, 646, 107 S. Ct. 3034, 3042, 97 L. Ed. 2d 523 (1987) (stating that an
official is protected by qualified immunity if his actions were reasonable
under the law).
17