Ray et al v. Judicial Corrections Services Inc et al

Filing 133

MEMORANDUM OPINION. Signed by Judge R David Proctor on 10/9/2014. (AVC)

FILED
2014 Oct-09 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

GINA KAY RAY, et al.,

}
}
Plaintiffs,
}
}
v.
}
}
JUDICIAL CORRECTIONS SERVICES, }
INC., et al.,
}
}
Defendants.
}

Case No.: 2:12-CV-02819-RDP

MEMORANDUM OPINION
This case is before the court on Non-Party Larry Ward’s Motion to Quash Subpoena and
Motion for Protective Order (Doc. # 97), filed May 21, 2014. The motion presents interesting
questions related to the proper application and scope of judicial immunity which should be
afforded a former part-time municipal judge. As discussed in more detail below, this court’s
Order (Doc. # 119), entered August 22, 2014, narrowed the issues now before the court. As a
threshold matter, Plaintiffs now argue that judicial immunity does not protect Ward at all where
“prospective collateral relief” is sought. (Doc. # 120 at 1). If judicial immunity does protect
Ward, however, the court must determine to what extent discovery may be sought from Ward as
to acts and omissions taken in his nonjudicial, administrative capacity.
For the reasons outlined below, the court’s August 22, 2014 Order (Doc. # 119) is due to
be affirmed, and Ward’s Motion (Doc. # 97) is due to be granted in part and denied in part.
I.

Procedural History
On April 26, 2013, Plaintiffs Gina Kay Ray, Kalus K. Johnson, and Deuante T. Jews

(collectively “Plaintiffs”) filed their Second Amended and Restated Complaint (Doc. # 50), on

behalf of themselves and those similarly situated, against Defendants Judicial Collection
Services (“JCS”) and the City of Childersburg (“Childersburg”).

Plaintiffs allege various

constitutional claims under 42 U.S.C. § 1983 arising out of the contractual relationship between
JCS and Childersburg for probation and fee collection services. Plaintiffs seek declaratory and
injunctive relief as well as money damages. (Doc. # 50 at 61-63).
On May 14, 2014, Plaintiffs served a subpoena for testimony and production of
documents on nonparty Larry Ward (“Ward”). (Doc. # 97, Ex. A-1). Plaintiffs sought various
documents from Ward, including (1) any documents relating to JCS whatsoever; (2) procedural
manuals or other documents concerning any of the municipal courts at which Ward served; (3)
copies of K1 and W-2 forms showing income earned by Ward as a municipal court judge for any
municipality in Alabama for the last five years; (4) awards received by Ward for service as a
municipal judge; (5) contracts between Ward and any of the municipalities he served; (6)
documents showing remuneration from bond activity in any of the municipalities Ward served;
(7) documents showing rating adjustments on bonds for any of the municipalities Ward served;
and (8) awards received by Ward for participation in bond issues in Alabama for the past five
years. (Id.). Ward filed a motion opposing the discovery request and asserts that he is protected
by judicial immunity. (Doc. # 97).
After the issue was briefed (Docs. # 101 & 105) and the court heard oral argument on the
matter, the court entered an Order (Doc. # 119) granting in part and denying in part Ward’s
Motion (Doc. # 97). The court granted the motion insofar as it sought to limit, but not entirely
preclude, Ward’s deposition to questions involving his “nonjudicial involvement in negotiating,
recommending, and executing the contract for services” between JCS and Childersburg.

2

To aid the court and the parties in determining the extent of the permissible discovery, the
Order (Doc. # 119) also permitted the parties to file supplemental briefs regarding: (1) the
distinction between Ward’s judicial and administrative responsibilities during his tenure as
municipal court judge for Childersburg, and (2) the relevance, if any, of Pulliam v. Allen, 466
U.S. 522 (1984), to the issue. The issues now before the court have been fully briefed. (Docs. #
120 & 121).
II.

Facts
Ward is a former part-time municipal court judge for Childersburg and various other

municipalities. (Docs. # 101 at 1-2). Otherwise, Ward’s full-time employment over the relevant
time-period is as a municipal bond salesman with Morgan Keegan & Company, now known as
Raymond James Financial. (Docs. # 101 at 1-2).
Under a contract between JCS and Childersburg, JCS provided various probation and fee
collecting services to Childersburg. (See Doc. # 50 at ¶¶ 12, 18-19). Plaintiffs allege that when
a probationer was unable to pay a fine, the probationer was assigned to JCS for what Plaintiffs
deem “the administrative action of collections.” (Doc. # 120 at 8). Plaintiffs offer testimony
from Childersburg’s mayor that suggests JCS was hired by Childersburg upon the
recommendation of Ward and a city council member. (Id. at 7).
The record is unclear regarding the full extent of Ward’s involvement with JCS.
Childersburg was responsible for the hiring of Ward as its municipal court judge. (Doc. # 50 at ¶
19). Plaintiffs allege that
[Ward] signed separate blank JCS ‘probation’ order forms which were later filled
out by JCS employees. Many of these were filled in to retroactively include fines
levied years earlier. These ‘orders are not filed in the court, are not kept by
Childersburg and ultimately are shredded after being scanned to the JCS
Probation Tracker system.

3

(Doc. # 120 at 8). Furthermore, JCS may have sent out all notices of hearings and violations of
probation establishing hearing dates. (Id.). Plaintiffs argue that these facts, taken together,
establish Ward is beyond the protection of judicial immunity and should be subjected to
discovery.
III.

Discussion
Ward attempts to quash Plaintiffs’ outstanding subpoena claiming the protection of

judicial immunity. (Doc. # 97). Although Ward is a nonparty, “[t]he policy behind immunity
does not merely extend to suits, it also extends to protection against discovery.” In re Lickman,
304 B.R. 897, 903 (Bankr. M.D. Fla. 2004). Accordingly, “[u]ntil [the] threshold immunity
question is resolved, discovery should not be allowed.” Harlow v. Fitzgerald, 475 U.S. 800, 818
(1982).1
Ward’s Motion requires this court to address several issues: (A) whether judicial
immunity protects Ward; (B) if immunity does provide Ward with protection, to what extent
does it shield him from discovery; and (C) to what extent, if any, has Ward waived his immunity.
For the reasons outlined below, the court finds judicial immunity shields Ward with one
exception: he is subject to discovery related to his nonjudicial involvement in negotiating,
recommending, and executing the contract for services between JCS and Childersburg. 2

1

See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Harlow emphasizes that even such pretrial
matters as discovery are to be avoided if possible, as ‘[i]nquiries of this kind can be peculiarly disruptive of effective
government.’” (quoting Harlow, 457 U.S. at 817)); Williamson v. U.S. Dep’t of Agriculture, 815 F.2d 368, 382-83
(5th Cir. 1987) (“[T]he Supreme Court noted that the protection afforded government officials by the doctrines of
absolute and qualified immunity would be greatly depreciated if it did not include protection from
discovery. . . . [C]lose control of discovery is essential to the preservation of meaningful official immunity.”);
Lickman, 304 B.R. at 903; LeClerc v. Webb, 2003 WL 21026709 (E.D. La. May 2, 2003) (court granted stay of
discovery pending determination of immunity).
2

Because the court concludes that Ward is entitled to judicial immunity as to certain of his judicial actions,
the court need not address Ward’s argument under Rule 45(c). Furthermore, Plaintiffs’ request is not overly broad,
unduly burdensome, cumulative, or unlikely to lead to the discovery of admissible evidence with regard to Ward’s
nonjudicial role in negotiating, recommending, and executing the contract between JCS and Childersburg.

4

A.

Judicial Immunity Provides Some Protection to Ward in This Case,
Notwithstanding Plaintiffs’ Claims Against Defendants for Injunctive and
Declaratory Relief.

Plaintiffs argue judges only have immunity from damage claims for acts or omissions
taken in their judicial capacity, but no judicial immunity exists in cases claiming prospective
collateral relief. (Doc. # 120 at 1-2).3 As such, Plaintiffs suggest that “[b]ecause Judge Ward
would have no judicial immunity from those forms of prospective declaratory or injunctive relief
even if he had been sued for such relief personally, he also has no such immunity from being
deposed as a witness on the claims for such prospective relief against Childersburg and JCS.”
(Id. at 2) (emphasis added). For the reasons outlined below, Plaintiffs’ argument is off the mark.
1.

Plaintiffs’ Premise, That Judicial Immunity Is Inapplicable in Cases
Seeking Prospective Collateral Relief, Rests on Questionable
Precedent.

The premise of Plaintiffs’ argument relies on the validity of Pulliam v. Allen, 466 U.S.
522 (1984), which held that judicial immunity does not bar prospective injunctive relief against
judicial officers for acts or omissions taken in a judicial capacity. Congress, however, responded
to Pulliam by amending 42 U.S.C. § 1983 in an attempt to abrogate Pulliam’s holding regarding
the scope of judicial immunity. After the Federal Courts Improvement Act of 1996 (“FCIA”)
amendments, § 1983 now reads in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States . . . jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer for an act or omission
3

“The distinction between ‘judicial’ and ‘administrative’ acts does not apply to claims for prospective
relief rather than damages. Not even acts or omissions performed in a judicial capacity are immune from
prospective declaratory relief and certain forms of prospective injunctive relief under Pulliam v. Allen, and the
subsequent amendment of § 1983 . . . . For this reason, the initial question before the Court must be whether judicial
immunity exists for the type of prospective relief pled in the Amended Complaint.” (Doc. # 120 at 1) (citations
omitted).

5

taken in such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added); see also Pub. L. No. 104-317, § 309(c), 110 Stat. 3847
(codified at 42 U.S.C. § 1983).4
It cannot be seriously disputed that, after the FCIA, judicial immunity typically bars
claims for prospective injunctive relief against judicial officials acting in their judicial capacity.
Only when a declaratory decree is violated or declaratory relief is unavailable would plaintiffs
have an end-run around judicial immunity — and neither is true here. This abrogation of
Pulliam has been widely recognized. See Guerin v. Higgins, 8 F. App’x 31, 32 (2d Cir. 2001);
Haas v. Wisconsin, 109 F. App’x 107, 114 (7th Cir. 2004); Bolin v. Story, 225 F.3d 1234, 1242
(11th Cir. 2000) (per curiam) (discussing amendment’s purpose and effect); Kuhn v. Thompson,
304 F. Supp. 2d 1313, 1335 (M.D. Ala. 2004); Nollet v. Justices of Trial Court of Com. of Mass.,
83 F. Supp. 2d 204, 210 (D. Mass.), aff’d, 248 F.3d 1127 (1st Cir. 2000); Kampfer v. Scullin, 989
F. Supp. 194, 201-02 (N.D.N.Y. 1997); see also Esensoy v. McMillan, No. 06-12580, 2007 WL
257342, at *1 n.5 (11th Cir. Jan. 31, 2007).5
Plaintiffs neither allege that Defendants have violated a declaratory decree nor that
declaratory relief is unavailable. On the contrary, the very nature of their claims, which seek
both declaratory and injunctive relief, indicates that declaratory relief is available. See, e.g.,

4

Defendants also note that Pulliam’s holding was further abrogated by the FCIA to the extent that it
permitted plaintiffs to obtain attorneys’ fees from judicial officers who are enjoined under its exemption to judicial
immunity. Pub. L. 104-317, § 309(a), 110 Stat. 3847 (“Notwithstanding any other provision of law, no judicial
officer shall be held liable for any costs, including attorney's fees, in any action brought against such officer for an
act or omission taken in such officer's judicial capacity, unless such action was clearly in excess of such officer's
jurisdiction.”)).
5

For example, in Kuhn v. Thompson, 304 F. Supp. 2d 1313, 1335 (M.D. Ala. 2004), Alabama voters
brought suit against the members of Alabama’s Court of the Judiciary for certain alleged constitutional violations.
Id. at 1318-21. The court stated, “Congress amended Section 1983 to reverse Pulliam, and restore judicial
immunity . . . .” Id. at 1323. The district court held that judicial immunity protected a judicial officer from a suit
claiming prospective injunctive relief. Id. at 1322-23.

6

Kuhn, 304 Id. at 1335 n.11 (“Plaintiffs seem to acknowledge the availability of declaratory relief
by seeking it in this very action.”); see also Nollet, 83 F. Supp. 2d at 210; Finn v. County of
Albany, No. 98–CV–844, 1999 WL 291820, at *5 (N.D.N.Y. May 5, 1999). Accordingly,
judicial immunity is available for Plaintiffs claims which seek injunctive relief.
Notwithstanding § 1983’s clarity regarding injunctive relief, that statute fails to address
the availability of prospective declaratory relief to defeat judicial immunity. Plaintiffs contend
the FCIA amendment to § 1983 still permits suits against judges for such declaratory relief.
(Doc. # 120 at 4).6 Plaintiffs argue that the amendments merely created a “procedural condition
precedent to an injunction” without otherwise broadening the coverage of judicial immunity.
(Doc. # 120 at 3). Plaintiffs’ arguments are not wholly lacking in support. Courts have gone
both ways on the issue.
The Eleventh Circuit has provided some guidance. Our circuit has taught us that, in
Pulliam,
the Supreme Court concluded that judicial immunity is not a bar to demands for
injunctive relief against state judges. Congress abrogated Pulliam, however, by
passing the [FCIA], which amended § 1983 to provide that “in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.” Because Appellant specifically
requests declarative relief, judicial immunity protects the Defendants only from
Appellant’s request for injunctive relief. But § 1983 does not explicitly bar
Appellant’s request for declarative relief.
Esensoy, 2007 WL 257342, at *1 n.5 (11th Cir. Jan. 31, 2007) (emphasis added). On the one
hand, Esensoy supports Plaintiffs’ argument. In that decision, the Eleventh Circuit seems to have
permitted an exemption from judicial immunity where plaintiffs requested declaratory, and not

6

Plaintiffs suggest the Eleventh Circuit approved this argument in Bolin v. Story. 225 F.3d at 1242. In
Bolin, however, the court addressed Bivens claims against federal judicial officers, not § 1983 claims.

7

merely, injunctive relief against a judge.7 On the other hand, Esensoy is an unpublished opinion
and even it acknowledges that Congress abrogated Pulliam, at least in part, by passing the FCIA.
Moreover, the guidance as to Pulliam’s validity is also dicta — and, to be sure, dicta buried in a
footnote.8 Id. at 2.
There is really no question that in passing the FCIA, Congress was responding to
Pulliam. The Pulliam decision only exempted prospective injunctive relief from the application
of judicial immunity. See 466 U.S. at 527-28. Addressing the issue in Esensoy, the Eleventh
Circuit noted that “§ 1983 does not explicitly bar Appellant’s request for declarative relief.”
2007 WL 257342, at *1 n.5. But one might argue Congress did not feel the need to explicitly bar
claims for declaratory relief because no such exemption from judicial immunity had ever
previously been recognized. Plaintiffs’ response to that point is that “[w]e never had a rule of
absolute judicial immunity from prospective relief” (Doc. # 120 at 4), and therefore, when
Congress amended § 1983, it did so against a common law backdrop which permitted
declaratory relief against officers in their judicial capacity. No authority supports this argument,
and the court concludes that it is far wide of the mark. Other courts have wrestled with the issue
and have held that Pulliam has been effectively overruled. See, e.g., Guerin, 8 F. App’x at 32
(“We also reject plaintiff’s contention that he is entitled to declaratory relief based on Pulliam v.
Allen, . . . given that the Pulliam holding with respect to such relief has been effectively
overruled by Congress.”).

7

Here, as in Esensoy, Plaintiffs explicitly seek both injunctive and declaratory relief. (Doc. # 50 at 57-63
(Count Eleven)). Unlike Esensoy, however, Plaintiffs also seek an award of “such damages as this Court shall find
the Plaintiffs have sustained, together with punitive, or exemplary damages as the law shall permit.” (Id. at 61).
8

The circuit court ultimately dismissed appellant’s § 1983 claim on other grounds, notwithstanding the fact
that the defendant in that case was not awarded immunity. Esensoy, 2007 WL 257342, at *2.

8

Although Pulliam has been abrogated by the FCIA -- that is, it has been abrogated to the
extent that a plaintiff seeks prospective injunctive relief -- it is unnecessary for this court to make
any finding with respect to Plaintiffs’ assertion that the FCIA still permits suits against judges for
prospective declaratory relief. Indeed, for the reasons stated below, even if Pulliam exempted
claims for prospective declaratory relief from the bar of judicial immunity, this court would find
Pulliam inapplicable in the instant case.9
2.

Pulliam Would Not Apply in Because Plaintiff Seeks No Relief from
Ward.

Even if the court were to accept Plaintiffs’ premise that Pulliam has not been abrogated
to the extent that it permits prospective declaratory relief, Plaintiffs’ argument still necessarily
fails. First, by its plain language, Pulliam does not control the instant case. Specifically,
Pulliam held that “[j]udicial immunity is not a bar to prospective injunctive relief against a
judicial officer acting in her judicial capacity.” Pulliam, 466 U.S. at 1981. Here, Plaintiff seeks
injunctive, declaratory, and monetary relief (both prospectively and retrospectively) against JCS
and Childersburg. Those parties are not judicial officers and at no point in this case have
Plaintiffs sought any relief against Ward.10

Therefore, regardless of Pulliam’s continued

viability, this case is simply not the type contemplated by the plain language of that decision’s

9

Perhaps because it would be an exceedingly weak argument, Plaintiffs do not suggest that the
amendments to § 1983, which create the “condition precedent to injunctive relief,” are inapplicable in this instance
because this case does not involve an “action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity.” 42 U.S.C. § 1983 (emphasis added). This case involves an action brought against
Defendants JCS and Childersburg only. Therefore, nothing in the text of § 1983 itself requires violation of a
declaratory decree or declaratory relief to be unavailable before injunctive relief is sought from Ward — a nonparty.
Were Plaintiffs’ to adopt this textual stance, however, they would be forced to confront the issue that Pulliam only
purports to exempt from immunity claims for “prospective injunctive relief against a judicial officer acting in her
judicial capacity.” Pulliam, 466 U.S. at 1981 (emphasis added). The court addresses that particular argument
supra.
10

Ward has retired from his judgeship and, as both parties recognize, any claim against him for prospective
injunctive or declaratory relief would be moot.

9

holding, which provides only for an exemption from immunity where prospective relief against a
party (who is a judge) is sought.
Furthermore, Plaintiffs’ theory calls upon the court to engage in rank speculation.
Federal courts are limited to addressing only actual cases and controversies, not hypotheticals.
See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41 (1937). Plaintiffs
argue that as Ward would not have immunity from prospective relief “if he had been sued for
such relief personally,” he also has no immunity from being deposed as a witness on the claims
for such relief against Childersburg and JCS. (Doc. # 120 at 2). To accept Plaintiffs’ theory, the
court would be required to assume that if Ward still served in a judicial capacity (because that
would be a required showing to subject him to a claim for prospective relief), and in that event if
Plaintiffs had brought an appropriate claim against him, that could potentially exempt him from
judicial immunity. And, as their argument continues, if the court made a finding that Ward
would not be protected by judicial immunity in that hypothetical case, the court would then be
free to conclude Ward also should not be protected in this (different) case.
The court declines Plaintiffs’ invitation to speculate as to the exact mix of hypothetical
claims against nonparties that would have existed under a wholly different set of facts to justify
subjecting Ward to Plaintiffs’ discovery request.11 In this case, Ward is a nonparty witness and a
retired municipal court judge, and Plaintiffs brought suit against only JCS and Childersburg for
money damages, injunctive relief, and declaratory relief. The court will not offer a guess or

11

Plaintiffs suggest that, as the “masters of their Complaint,” their entire complaint should be considered
— not just Plaintiff’s damages claim against Defendants JCS and Childersburg. (Doc. # 120 at 6). But that
argument also is without merit. The court has searched through Plaintiffs’ complaint to find any prospective relief
sought against Ward in his judicial capacity. There is none.

10

opinion as to what discovery would be permitted had Plaintiffs brought a claim against Ward for
declaratory relief while he was still serving in a judicial capacity.12
3.

The Policy Underlying Judicial Immunity Favors Limiting Discovery
of Nonparty Judicial Officers with Respect to Actions Taken in Their
Judicial Capacity.

Finally, the policy supporting judicial immunity weighs against subjecting nonparty
judicial officers (or in this case, former judicial officers) to discovery for actions taken in their
judicial capacity where prospective injunctive relief is sought. Plaintiffs’ argue that nonparty
judicial officers lose immunity from discovery for acts and omissions taken in their judicial
capacity where prospective declaratory relief is claimed. But as Ward has indicated in his Reply
(Doc. # 97 at 7), courts in this circuit have denied similar arguments.

In Lickman, the court

quashed a subpoena directed to a judge and his judicial assistant noting “the policy behind
immunity does not merely extend to suits, it also extends to protection against discovery.” 304
B.R. at 903. The court further noted that “inquiries of this kind can be particularly disruptive of
effective government.” Id. “The purpose of judicial immunity is for benefit of the public, whose
interest it is that the judges should be at liberty to exercise their functions with independence and
without fear of consequences. . . . 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.” In
re Lickman, 304 B.R. 897, 902 (Bankr. M.D. Fla. 2004) (citing Oliva v. Heller, 839 F.2d 37, 39
(2d Cir. 1988) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967))).
In a somewhat different context, the Supreme Court has acknowledged that “the
‘consequences’ with which we were concerned in Harlow are not limited to liability for money

12

Again, the problems outlined here are only compounded by Pulliam’s shaky precedential value in light of
the FCIA amendments to § 1983. In any event, to the extent it remains good law, Pulliam’s exemption from judicial
immunity is inapplicable here.

11

damages; they also include ‘the general costs of subjecting officials to the risks of trial—
distraction of officials from their governmental duties, inhibition of discretionary action, and
deterrence of able people from public service.’” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)
(quoting Harlow, 457 U.S. at 816).13

As Mitchell acknowledges, protection from money

damages is not the sole rationale for judicial immunity, and the other consequences of litigation
apply equally to judges subjected to discovery in any case, seeking any form of relief.
Furthermore, a contrary holding would have absurd results. This judicial overreach
would subject every former state judge in the country to the threat of discovery in any
proceeding where the judge’s inside knowledge (gained in from actions taken in her judicial
capacity) could have plausibly led to relevant information in a collateral matter. There is not a
conceivable limitation that could reasonably be placed on Plaintiffs’ proposed rule. And for this
reason (among others) the court refuses to create any broader exemption to the time honored and
well-established doctrine of judicial immunity. The actions of judicial officers taken in their
judicial capacity must be as stringently protected when those officers are attacked indirectly as
13

Justice Field articulated three policy considerations underlying the doctrine of judicial immunity in
Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). Because the nature of the adversarial system leaves one party to
litigation invariably dissatisfied, if left unchecked, lawsuits attacking judges would abound. Id. at 348. The
consequences of these attacks could be serious. First, the practice would facilitate relitigation on every matter in
perpetuity as each judge would be called before another to justify a prior decision. Id. Second, judges would be
incentivized to redirect their attention away from their judicial functions, instead being forced to preserve exhaustive
records justifying their decisions. Id. at 349. Finally, independence requires judges be free from constant fear of the
personal consequences that might ensue from an erroneous decision. Id. (“The public are deeply interested in this
rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and
prevent them being harassed by vexatious actions”); see also Thomas J. Noto, III, Pulliam v. Allen: Delineating the
Immunity of Judges from Prospective Relief, 34 Cath. U. L. Rev. 829, 837 (1985). It is this final consideration that
primarily concerns the court in this case.
Of course, it is simply irrelevant that Ward is no longer serving in a judicial capacity. Retired judicial
officers are protected by judicial immunity to the same extent and for the same reasons that sitting judges are. See,
e.g., Sparks v. Duval Cnty. Ranch Co., Inc., 588 F.2d 124 (5th Cir. 1979) (former state judge still cloaked with
judicial immunity from bribery charge after being removed from the bench and incarcerated on income tax charges);
Grove v. Rizzolo, 441 F.2d 1153 (3d Cir. 1971) (summarily finding former county judge still protected by judicial
immunity); Flanagan v. Shamo, 111 F. Supp. 2d 892 (E.D. Mich. 2000) (same); Lickman, 304 B.R. at 902 (“Judicial
immunity is still accorded a former sitting judge if the complaints against him arise from the judicial acts taken
when he was a judge.”).

12

nonparties, just as they are when they are attacked directly as defendants. To hold otherwise
would permit plaintiffs an end-run around judicial immunity, leading to deleterious collateral
litigation.
B.

Judicial Immunity Does Not Protect Ward from Discovery into His
Involvement in Negotiating, Recommending, and Executing the Contract for
Services Between JCS and Childersburg.

Having concluded Ward is entitled to judicial immunity, the court must next determine
the extent to which Ward is protected. As a general rule, judicial immunity applies only with
respect to those acts taken while judges are acting in their judicial capacity unless they act in the
clear absence of all jurisdiction. See Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005)
(citations omitted). This court has previously concluded that Ward is subject to discovery for his
“nonjudicial involvement in negotiating, recommending, and executing the contract for services”
between Defendants JCS and Childersburg. (Doc. # 119). In this light, the court now addresses
the distinction between Ward’s judicial and nonjudicial roles.
Plaintiffs argue that the “delegation of authority to JCS for its collections efforts is all
administrative and void of any other function.” (Doc. # 120 at 9). Thus, Plaintiffs suggest that
Ward is subject to discovery as to “the city contract, recommendation, approval and
implementation of the contract,” (Doc. # 120 at 7), and Plaintiffs specifically request documents
that would show “how this probation process administratively works.” (Doc. # 129 at 13).
The court takes a functional approach in determining whether a judge’s actions are taken
in judicial capacity, so as to entitle a judge to judicial immunity from suit, finding that the
relevant inquiry “is the ‘nature’ and ‘function’ of the act, not the act itself.” Mireles v. Waco,
502 U.S. 9, 13 (1991) (noting courts must looks to “the particular act’s relation to the general
function performed by a judge”); see also Stump v. Sparkman, 435 U.S. 349, 362 (1978) (finding
“whether an act by a judge is a ‘judicial’ one relates to the nature of the act itself, i.e., whether it
13

is a function normally performed by a judge, and to the expectation of the parties, i.e., whether
they dealt with the judge in his judicial capacity”).14
1.

Ward’s Role in Negotiating, Recommending, and Executing Any
Contract Between JCS and Childersburg Is Nonjudicial and Subject
to Plaintiffs’ Discovery.

At the outset, the court agrees with Plaintiff that Ward’s judicial functions could not
encompass his role in “negotiating, recommending, and executing” any contract for probation
services between JCS and Childersburg. At its heart, these acts are nonjudicial, administrative
services. This conclusion merely reaffirms the court’s August 22, 2014 Order (Doc. # 119), and
Ward no longer disputes this point. (See Doc. # 121 at 7). The court finds, however, that Ward’s
involvement beyond the negotiating, recommending, and executing of JCS-Childersburg contract
was generally judicial in nature.
2.

Ward’s Exercise of Control over Post-Conviction Probation Matters
Are Judicial in Nature and Protected from Discovery.

The court concludes that Ward’s exercise of control over post-conviction probation
matters was judicial in nature and, therefore, he is protected against discovery in that area by way
of his judicial immunity. Ward’s actions at issue here are of the same nature and function as
probation revocation hearings, sentencing, and indigency hearings, which have commonly been
held to constitute normal judicial functions. See, e.g., Mitchell v. Owens, CV513-022, 2013 WL
1898175 (S.D. Ga. Apr. 8, 2013) (“Actions associated with Plaintiff’s probation revocation
hearing and sentencing are activities taken within the judge’s judicial capacity because such
actions constitute normal judicial functions.”), adopted by CV513-022, 2013 WL 1898172 (S.D.

14

The Eleventh Circuit has further clarified that whether a judge’s actions are made while acting in her
judicial capacity depends on whether: (1) the act complained of constituted a normal judicial function; (2) the events
occurred in the judge’s chambers or in open court; (3) the controversy involved a case pending before the judge; and
(4) the confrontation arose immediately out of a visit to the judge in his judicial capacity. Scott v. Hayes, 719 F.2d
1562, 1565 (11th Cir. 1983).

14

Ga. May 7, 2013); Lee v. Wood, CIV.A.04-00710BHB, 2007 WL 2460756 (S.D. Ala. Aug. 27,
2007) (handling parole revocation proceedings are judicial functions).
Furthermore, the Probation Tracker-generated documents used by Ward, which include
Notices to Show Cause, Petitions for Revocation, and Probation Orders are clearly judicial in
nature and function, not administrative. Plaintiff argues these documents are “post conviction,
administrative tools for strong arm collection.” (Doc. # 120 at 8). These documents, however,
are of the same character as any judicial action or order. Each of the documents essentially
altered the rights and liabilities of the parties in those cases that were pending before Ward.
Judges routinely communicate with parties and court officials with regard to cases, both on and
off the record, through text orders and other informal communications.
To the extent procedural errors can be found in his orders, Ward was nevertheless
exercising judicial functions, and such errors do not remove his decisions from the category of
protected judicial actions. In their attempts to validate their subpoena to Ward, Plaintiffs allege
that Ward signed numerous blank JCS probation orders that were later filled out by JCS
employees and also allege many of the forms were filled in years later. (Doc. # 120 at 8). Here,
the court makes no finding as to the propriety of Ward’s actions, but that is not the key issue. It
is well-settled that judicial immunity applies even when a judge’s acts are alleged to have been
done maliciously or corruptly. See Stump v. Sparkman, 435 U.S. 349, 356, 359 (1978). Indeed,
“[i]f judicial immunity means anything, it means that a judge ‘will not be deprived of immunity
because the action he took was in error . . . or [even] in excess of his authority.” Mireles, 502
U.S. at 13 (quoting Stump, 435 U.S. at 356). Thus, Plaintiffs’ assertions that Ward’s hearings
and probation revocation orders were marred with grave procedural errors are of no moment; he
is still protected by judicial immunity. See Stump, 435 U.S. at 359.

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Similarly, neither does the frequency or efficiency of Ward’s probation practices alter
their inherently judicial nature or function. Plaintiffs allege that Ward has reduced the probation
procedures to “automatic” administrative procedures. (Doc. # 101 at 7). The Sixth Circuit has
recognized that “the fact that a judge’s orders follow a certain pattern does not automatically
convert those orders into [administrative] ‘rules.’” Mann v. Conlin, 22 F.3d 100, 104-05 (6th
Cir. 1994). The court finds Mann’s holding persuasive.15 Obviously, if a process cannot be
sufficiently flawed to remove it from the protection of judicial immunity, neither can it be too
routinized.16
C.

Ward Has Not Waived His Judicial Immunity by Choosing To Testify in
Another Case.

Finally, Plaintiffs argue that even if Ward is otherwise protected by judicial immunity,
Ward has waived that protection. (Doc. # 101 at 8-9). Waiver is a voluntary and intentional
relinquishment of a known right, claim, or privilege. See, e.g., Edwards v. Kia Motors of Am.,
Inc., 486 F.3d 1229, 1233 n.6 (11th Cir. 2007). Plaintiffs have failed to show any waiver
occurred here. Ward has timely and properly raised his immunity defense in this case. That
Ward testified as a nonparty in a separate case against the Town of Harpersville does not
constitute a waiver here. By sitting for deposition in the case against Harpersville, Ward did not
knowingly and voluntarily open himself up to discovery or suit in each and every case in which

15

Plaintiffs argue Ward’s actions in “implementing” the City’s contract were administrative, and point
particularly to his actions related to the collection of fines and certain post-conviction forms generated by JCS’s
Probation Tracker database. (Doc. # 120 at 8). The court notes that the record is largely ambiguous as to the
specific interaction Ward had with respect to JCS beyond issuing probation orders and establishing various
probation procedures. To be clear, this ambiguity will not be clarified through discovery, because discovery will not
be allowed until the immunity issue is decided. See Harlow, 457 U.S. at 817 (“inquiries of this kind can be
particularly disruptive of effective government”).
16

To be clear, nothing in this Memorandum Opinion should be read to stop Plaintiffs from pursuing
Probation-Tracker-documents from other sources. Plaintiffs should generally be able to retrieve this subject of
discovery from JCS or Childersburg. The court remains skeptical that a retired municipal court judge would retain
any of the documents regarding post-conviction of various probationers that would be useful to Plaintiffs.

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he presided as a municipal court judge, or each case arising from the use of the JCS Probation
Tracker system. Cf. Diaz v. Glen Plaid, LLC, 7:13-cv-853-TMP, 2013 WL 5603944, at *5 (N.D.
Ala. Oct. 11, 2013) (holding that sovereigns entitled to immunity “may ‘pick and choose’ the
cases to which they are willing to consent”). Ward has not waived his right to judicial immunity
to which he is otherwise entitled.
IV.

Conclusion
For the reasons discussed above, the court affirms and clarifies the August 22, 2014

Order. (Doc. # 119). Ward’s Motion to Quash Subpoena and Protective Order (Doc. # 97) is
due to be granted in part and denied in part. The Motion is denied to the extent that it would
prohibit nonparty Ward from being deposed. The Motion is granted insofar as it seeks to limit
Ward’s deposition to questions involving his involvement in negotiating, recommending, and
executing the contract for services between JCS and Childersburg. Ward is not subject to
discovery for his interactions with JCS in his judicial capacity, including Ward’s handling of
various post-conviction probation procedures, probation revocation hearings, and the issuance of
various probation orders, along with issuance of other Probation Tracker documents.
An Order will be entered contemporaneously with this Memorandum Opinion.
DONE and ORDERED this October 9, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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