Monday, October 30, 2023

Unwarranted And Barefoot

The United States Court of Appeals for the Fourth Circuit declined to extend judicial immunity to a judge who had participated in the execution of a search warrant

We consider in this appeal whether a judge who participates in the search of a litigant’s home is entitled to judicial immunity for actions related to the search. Judge Louise Goldston went to Matthew Gibson’s residence to look for items he had failed to turn over to his ex-wife after their divorce. She entered his home over his objections after threatening him with arrest should he try to stop her. She then supervised the seizure of designated items in the house. The only question before us is whether judicial immunity shields these acts. We hold it does not. Judicial immunity protects only judicial acts. It does not shield the conduct of judges who step outside their judicial role, as Judge Goldston did when searching Gibson’s home.

At a post-divorce contempt hearing

On March 4, 2020, the parties gathered before Judge Goldston in her West Virginia courtroom for a hearing on the petition. Gibson’s ex-wife was represented by counsel; Gibson appeared pro se. The ex-wife was asked to testify about her grievances. In the middle of her testimony, Judge Goldston interrupted to ask Gibson for his address, which he gave her. She then recessed the hearing and ordered the parties to meet her at Gibson’s home. She did not explain the sudden change of venue and gave Gibson no opportunity to object before leaving the courtroom.

Judge Goldston, the bailiff, Gibson, his ex-wife, and her attorney all piled into their cars for the ten-minute drive over. Gibson rode with his new girlfriend, and the two spent the drive researching the procedure for disqualifying a judge. They were the first to arrive. Upon doing so, Gibson started an audio recording on his phone and his girlfriend started a video recording on hers while they waited outside for the others.

Part of the ensuing search was recorded

We lack a record of everything that happened. The bailiff recorded only seven minutes of the twenty-or-thirty-minute search. No one made a contemporaneous record of all that was taken. No police report describing the search was ever filed, even though the backup sheriff’s deputy eventually arrived, entered the home, and helped with the search. After the search, the parties reconvened in the courtroom, where Judge Goldston listed the items that had been recovered for the record. But no written order was ever entered describing or authorizing the search itself.

The judge was censured by the West Virginia Supreme Court of Appeals.

Judicial immunity is "strong medicine"

But the medicine’s potency cautions against its indiscriminate prescription. And so there are limitations. Judicial immunity does not protect judges so much as it protects the judicial acts they undertake as part of their public service; it is “defined by the functions it protects and serves, not by the person to whom it attaches.” Id. (emphasis in original). As such, judges are not protected if they act in the “clear absence of all jurisdiction over the subject-matter” or when they engage in nonjudicial acts. Bradley, 80 U.S. (13 Wall.) at 351; Stump, 435 U.S. at 360. We rest our holding that Judge Goldston is not so protected on the fact that she engaged in a nonjudicial act. Our decision is not grounded in any absence of jurisdiction. Rather, it is based on the fact that the judge clearly exceeded the most common understandings of the proper judicial role.

The judge went barefooting

At the outset, we note that Judge Goldston’s visit to Gibson’s home had none of the usual trappings of a judicial proceeding. She was not in a courtroom, nor was she wearing a robe. For much of the interaction she wasn’t even wearing shoes. Such a lack of judicial trappings, however, is not dispositive in judicial immunity cases. See Stump, 435 U.S. at 360. There have been instances where judicial immunity has been conferred even though a judge was not wearing a robe and even when a judge was not in a courthouse.

Outside the scope

While Judge Goldston might have had the authority to order a search, see Matter of Goldston, 866 S.E.2d at 137 & n.14, the proper authority to conduct the operation was the local sheriff’s department or some other appropriate law enforcement agency. Just as “judges do not do double duty as jailers,” Rockett, 71 F.4th at 672, so too they do not do double duty as sheriffs. While we understand Judge Goldston’s concern that the sheriff would not have executed a warrant with the speed or zeal that she would have liked, the separation of powers was intentional. And while a greater merger of judicial and executive functions might be more efficient, that very efficiency would facilitate abuses of power. The Framers made a tradeoff: they gummed up the gears just a bit in return for protection against tyranny.

(Mike Frisch)

Judicial Ethics and the Courts | Permalink


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