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59 S.M.U. L. Rev. 265 (2006)
A Black Robe Is Not a Big Tent: The Improper Expansion of Absolute Judicial Immunity to Non-Judges in Civil-Rights Cases

handle is hein.journals/smulr59 and id is 275 raw text is: A BLACK ROBE Is NOT A BIG TENT: THE IMPROPER EXPANSION OF ABSOLUTE JUDICIAL IMMUNITY TO NON-JUDGES IN CIVIL-RIGHTS CASES Margaret Z. Johns* N civil-rights cases, absolute judicial immunity has been extended to many defendants who are not judges, including psychologists, social workers, mediators, receivers, probation officers, and licensing and parole-board members. This expansion of the immunity defense seri- ously undermines civil-rights enforcement, denies victims a remedy, and hinders the development of constitutional standards. It departs from the Supreme Court's decisions circumscribing the scope of absolute judicial immunity and cannot be justified by either historical understandings or policy arguments. Yet, surprisingly, this unwarranted expansion of abso- lute immunity has been ignored by the Supreme Court and has escaped scholarly criticism. This Article examines the extension of absolute judicial immunity to two categories of non-judges: (a) court adjuncts and appointees within the judicial system who are not decision-makers; and (b) decision-makers outside of the judicial system where procedural safeguards are lacking. It explains that these decisions fail to satisfy the Supreme Court's require- ments for establishing the entitlement to judicial immunity. It then pro- poses that this unjustified expansion of judicial immunity should be corrected by the adoption of a qualified-immunity regime that protects honest officials from excessive litigation, while allowing the vigorous en- forcement of civil-rights remedies. TABLE OF CONTENTS I. INTRODUCTION ........................................ 266 II. ABSOLUTE JUDICIAL IMMUNITY IN CIVIL- RIGHTS CA SES ......................................... 268 * Senior Lecturer, University of California, School of Law, Davis; J.D., University of California, School of Law, Davis, 1976; B.A., University of California, Santa Barbara, 1970. I am very grateful to the UC Davis campus and the School of Law for their support for this project. Many thanks to my research assistants, Daniel LaCount, Micah Nilsson, Adair Paterno, and Sharon Phosaly for their research, suggestions, corrections, good humor, and enthusiasm. I am indebted to my former student, David Bae, for volunteering to read the manuscript and providing editorial suggestions. Most importantly, my thanks to my family, especially Frank, Bob, and Hope for their love and support.

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