Metropolitan News-Enterprise

Monday, September 18, 1999

Page 12

Court of Appeal's Expansion of Judicial Immunity Is Unwarranted


Jeffrey K. Winikow is a Century City lawyer who last July persuaded Div. Four of this district's Court of Appeal to issue a writ requiring repayment to him of a $150 sanction imposed by Los Angeles Superior Court Judge Ronald Sohigian. However, the court spurned Winikow's request for costs on appeal—which a party winning a writ ordinarily would be awarded—based on the notion that judicial immunity spares the respondent, the Los Angeles Superior Court, of monetary obligations.

The sanction was imposed on Winikow for supposedly disobeying a court order. As discussed here Friday, the order was to give notice to "all counsel of record" of a status conference. Sohigian construed a violation based on ineffective service. However, there were no counsel of record in the case other than Winikow, hence no one whom Winikow needed to serve. To state the obvious, the sanction was inappropriate. Sohigian, himself, recognized that upon reflection. After an alternative writ was issued in March, he proceeded to vacate his order. Declining to dismiss the appeal based on mootness, the appeals court filed its opinion July 27. It declared:

"Let a writ of mandate issue requiring respondent to repay petitioner the sum of $150. Each party to bear its own costs."

If Winikow had not sought a writ, his loss would have remained at $150. By seeking relief, and ostensibly winning, he gained a return of the $150—but sustained expenses of $265 for the filing fee in the Court of Appeal and $60 for the reporter's transcript. These are items ordinarily recoverable as costs. But not here. The message to lawyers who are victimized by unjust sanctions is: seek a writ if you will, but you won't be made whole.

The opinion, by Justice Gary Hastings, quoted the Superior Court's court counsel, Frederick R. Bennett, as saying in a letter brief submitted after Winikow requested costs:

"[It] is inappropriate to award costs against the trial judge or the Superior Court, as to do so would chill the judicial process which judicial immunity was established to protect. As long as a court acts within the jurisdiction given to it, absolute judicial immunity applies regardless of whether the court was correct or incorrect in its action, and regardless of allegations of motive or intent. See Frost v. Geernaert (1988) 200 Cal.App.3d 1104, 1107-08; Mireles v. Waco (1991) 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).

"While these cases do not deal directly with costs, our Supreme Court has made it clear that judicial immunity applies to any effort to impose monetary consequences upon the exercise of judicial discretion. See Oppenheimer v. Ashburn (1959) 173 Cal.App.2d 624, 634...."

That argument seemingly proved persuasive to the court. Hastings did not expressly declare that judicial immunity precludes imposing costs on a court, but strongly implied as much, saying:

"Petitioner asks that we impose costs of $325 against respondent to reimburse him for payment of his filing fee in this court and preparation of the reporter's transcript. He contends that the trial court acted without or in excess of jurisdiction which should preclude application of the doctrine of immunity cited by respondent in its letter to this court.

"We need not decide whether or not an act in excess of jurisdiction would avoid immunity for an award of costs against respondent. The record does not support petitioner's conclusion that the trial court acted in excess of its jurisdiction. Rather, we have concluded that the court's order was an abuse of discretion."

In a tort case, a judge is immune from liability unless the alleged tort stemmed from a judicial act in excess of jurisdiction or an act that was nonjudicial in nature. Hastings declared that Sohigian did not exceed his jurisdiction; it is obvious an imposition of a sanction was a judicial act. OK. If Sohigian had been sued for damages, judicial immunity would have shielded him. However, Hastings' skimpy discussion does not come to grips with the issue of why judicial immunity would pertain in a writ action in which the Superior Court is an unsuccessful party and ordinary costs are sought.

The issue apparently is one of first impression; Bennett was unable to find any case directly in point. While the amount of money involved was small, the issue—whether judicial immunity should be expanded to shield courts from liability for costs—is meaningful. It deserved more than the slapdash treatment Hastings lent it.

Judicial immunity is a common law doctrine recognized in California from the sunrise days of its legal system. It is founded on "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself." Tagliavia v. County of Los Angeles (1980) 112 Cal.App.3d 759, 762, quoting from Bradley v. Fisher (1871) 80 U.S. (13 Wall.) 335, 347.

If a judge could be saddled with a monetary obligation to a party's lawyer in the event a sanction imposed on that lawyer were invalidated by the Court of Appeal, that prospect could well deter that judge from imposing the sanction, no matter how convinced the judge were that a sanction was warranted. The judge would not be "free to act upon his own convictions." However, it is unimaginable that judicial decisionmaking could be affected in the least by the prospect of the Superior Court, as an institution, being required to pay costs. Where money would not come out of the judge's own pocket, but rather, out of public coffers, this would not create "apprehension of personal consequence" to the judge.

It was the prospect of a personal monetary consequence for the judge that was condemned in Oppenheimer, cited by Bennett. That case involved a lawsuit aimed at exacting damages from seven judges for denying habeas corpus petitions. Penal Code Sec. 1505, as it then read, authorized actions against judges for refusing meritorious applications for writs of habeas corpus, capping damages at $5,000. The court said, at 633: "The process of judgment cannot be objective if it is weighted so that when rendered one way the judge is immune and, in the opposite way, subject to suit....The judge who must choose between a decision that leads to safety and one that may mean personal monetary loss is not a free judge."

Neither that case nor Frost or Mireles—in which tort damages were sought from judges—aids Bennett's position. Winikow did not seek tort damages, and he did not target Sohigian's billfold. He sought $325 from the Superior Court to reimburse him for his costs in a writ proceeding to which the court was a party.

(If any judge is tempted to blurt out at this point that any judgment against him or her, in the event judicial immunity were found inapplicable, would be satisfied with a government check, it would be wise to keep in mind that such a revelation would undercut the rationale for maintaining judicial immunity. Also, it should be borne in mind that conduct so grotesque as to be outside the ambit of immunity might well be outside the scope of employment, meaning no government liability.)

Given that Hastings' assumption that judicial immunity applies is grounded on the content of Bennett's letter brief, it's appropriate to take a close look at what the lawyer said. He wrote: "[It] is inappropriate to award costs against the trial judge or the Superior Court, as to do so would chill the judicial process which judicial immunity was established to protect." The phrase "or the Superior Court" is casually slipped in. Bennett does not point out how the judicial process would be chilled by imposing costs on the institution, and does not demonstrate that immunity is designed to protect the institution, as opposed to its judges.

Bennett continued in his letter:

"As long as a court acts within the jurisdiction given to it, absolute judicial immunity applies regardless of whether the court was correct or incorrect in its action, and regardless of allegations of motive or intent."

The terms "judge" and "court" are often used interchangeably. "May it please the court" really means, "May it please the judge." In the sentence just quoted, if "court" is intended to mean "judge," the statement is correct, albeit irrelevant to the issue of the liability of the court, as an institution, for costs. If, however, "court" is intended to mean "Superior Court," the institution, Bennett is stating a proposition unsupported by case law or reason.

Bennett, in an interview, pointed to a consideration not discussed in Winikow: under "derivative liability," a government entity would be liable for the torts of its employees, and it would be "entitled to the same immunities and defenses" as they.

Is the Superior Court immune from liability for costs because it is a state institution, and Sohigian, an employee of the state, enjoys immunity?

It is true that if Sohigian were sued in a tort action and the exceptions to immunity did not apply, Sohigian would be immune and the state would be immune. It was said in City of Santa Clara v. County of Santa Clara (1969) 1 Cal.App.3d 493, at 498: "It is a long-established rule that a judge is not to be held answerable in damages for acts performed in his judicial capacity....Since no liability can attach to the judge the state also is not liable. (Gov. Code, §815.2, subd. (b).)"

Government Code Sec. 815.2 reads, in its entirety:

"(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. [¶] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

However, Winikow did not bring an action seeking to affix "liability" for an injury proximately caused by Sohigian's imposition of a sanction. He merely sought a writ ordering that his money be returned. No tort was alleged, and no judicial immunity came into play. Accordingly, Sec. 815.2 is without relevance.

Indeed, neither precedent nor sound policy supports the denial of costs to Winikow. In order to obtain the alternative writ that nudged Sohigian to vacate his order, Winikow had to spend $325 for the filing fee and transcripts. Costs are recoverable by a successful writ petitioner, under CRC Rule 56.4, unless "the interests of justice require" to the contrary. Judicial immunity being plainly inapplicable, and no "interests of justice" being served by withholding costs, Winikow ought to have been awarded the $325 he sought.

Justice was not done.

I'll continue the discussion of Winikow and sanctions in future columns.

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