I hope everyone had a Merry Christmas and is having a happy holiday season. Today’s blog entry comes from the Supreme Court of Georgia in a case decided November 23, 2021. It has absolutely nothing to do with the ADA per se but then again it very much does. The case goes to the question of just how far the doctrine of judicial immunity goes. As I have mentioned previously, it isn’t unusual for me at all to get calls saying that a judge is refusing to accommodate a litigant with a disability. Also, it is not unusual for me to see situations where judicial immunity is claimed solely because it is the judge that decides on the reasonable accommodation/modification request rather than clerical staff. This case, Spann v. Davis, here, deals with both of those questions even if it is not a matter of disability discrimination. As usual, the blog entry is divided into categories and they are: procedural history; issues presented; short answer; court’s reasoning that lower court erred in dismissing sua sponte, on its own motion, the case because of quasi-judicial/judicial immunity; quasi-judicial/judicial immunity is an affirmative defense but is nonwaivable; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.
Plaintiff filed suit against two people who were administrators of the City of Atlanta Municipal Court alleging that she was wrongfully arrested and detained as a result of the clerk’s failure to withdraw a failure to appear warrant after it was canceled by the Municipal Court. The clerks raised sovereign immunity and official immunity as defenses in a motion to dismiss, but the trial court on its own motion raised and granted the motion based on quasi-judicial immunity with no prior notice to the parties.
- Did the Court of Appeals err in concluding that the trial court was correct to rule on its own motion on the issue of quasi-judicial immunity even though the defendant did not raise quasi-judicial immunity in the motion to dismiss or in its answer?
- Did the clerks waive the defense of quasi-judicial immunity by failing to raise it in their initial pleading or by motion?
Court’s Reasoning That the Lower Court Erred in Ruling on Quasi-Judicial Immunity on Its Own Motion
- In a footnote, the court said that judicial immunity shields judicial officers from liability in civil actions based on acts performed in their judicial capacity that are not undertaken in the complete absence of all jurisdiction. This broad immunity, normally applies to judges, also applies to officers appointed by the court if their role is simply an extension of the court.
- The Court of Appeals reasoned that the clerk’s failure to report the cancellation of the warrant was a judicial and not a ministerial function because the warrant is always issued by a judge.
- The Georgia Supreme Court in a footnote expressed its doubt over whether a trial court can on its own behalf dismiss on the basis of affirmative defenses other than failure to state a claim, but it was not necessary for the Georgia Supreme Court to answer that question with respect to this case.
- The Georgia Court of Appeals has held that a trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.
- A judgment dismissing a matter based on an affirmative defense that has not been raised is particularly problematic because a party seeking protection from suit on the basis of immunity bears the burden of establishing that he or she is entitled to that protection.
- The defense of judicial immunity or quasi-judicial immunity is a fact specific inquiry turning on the nature and function of the action taken by the party asserting the defense rather than the party’s status.
- Since the clerks did not assert quasi-judicial immunity and the responsive pleading, such that the allegations of the pleading did not reveal on their face that they were entitled to immunity as a matter of law, and the clerk did not move to dismiss on that basis, the trial court erred in dismissing on its own behalf plaintiff’s claims.
Court’s Reasoning That the Clerk Did Not Waive the Defense of Quasi-Judicial Immunity by Failing to Raise It in Their Initial Pleading or by Motion.
- OCGA §9-11-12(b) lists seven defenses that must be raised to a claim for relief in any pleading.
- OCGA §9-11-8(b) requires a party to state in short and plain terms any defenses to each claim asserted.
- Of the seven enumerated defenses in OCGA §9-11-12, four of them (lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process), may be waived under certain circumstances.
- In a footnote, the Georgia Supreme Court notes that the Federal Rules of Civil Procedure include a catchall introductory provision covering all possible affirmative defenses, which is not the case with respect to Georgia.
- Quasi-judicial immunity is not one of those defenses enumerated in OCGA §9-11-12(h)(1) as being waived if not included in a responsive pleading as originally filed.
- Quasi-judicial immunity is not among the seven defenses that the OCGA permits to be raised by motion rather than in responsive pleading. Therefore, the clerk’s failure to include quasi-judicial immunity in their motion does not amount to a waiver of that defense.
- Since a trial court retains authority over a case regardless of whether judicial or quasi-judicial immunity applies, the assertion of quasi-judicial immunity is an affirmative defense and not an issue divesting the court of subject matter jurisdiction.
Justice McMillan Concurring Opinion
- With respect to judicial immunity, its scope includes: 1) protecting judges from being sued and from being held civilly liable as a result of carrying out their judicial duties; 2) a judge will be denied the absolute protection of judicial immunity when committing an act that is not judicial in nature or when acting in the complete absence of all jurisdiction; and 3) the determinative issue is whether the court function complained of was nonjudicial.
- The relevant inquiry is the nature and function of the act and not the act itself. In other words, you look to the particular act’s relation to a general function normally performed by a judge.
- The Georgia Supreme Court previously went astray when it looked to the statute as being essentially dispositive to determine the judicial function instead of it being just a factor in the analysis. The Georgia Supreme Court then erroneously extended the concept that a statute can define a judicial function to say that reporting the disposition of a matter to another government agency a judicial function generally even apparently in the absence of a statute. With respect to the federal cases that decision relied upon, none of those cases addressed the issue of a judicial function versus a clerk’s function.
- Judicial immunity and quasi-judicial immunity are affirmative defenses. Also, these particular affirmative defenses do not get waived in Georgia. At the federal level, for the reasons noted by the Georgia Supreme Court, the answer might be different as a result of the difference in the language between the federal rules and the Georgia rules.
- The judicial immunity determination is a fact specific inquiry.
- The Georgia Supreme Court disfavors a judge dismissing a matter on judicial immunity or quasi-judicial immunity on its own motion. While the failure to raise the affirmative defense of quasi-judicial immunity and judicial immunity is not waivable in Georgia, it is still up to the parties to raise the defense.
- The concurring opinion is something very valuable for attorneys representing persons with disabilities in any jurisdiction with respect to challenging a judge’s failure to accommodate an individual with a disability. The critical question is the nature and function of the act and not the act itself. Further, what a statute says isn’t dispositive either. All kinds of people decide on what is a reasonable modification/accommodation who are not judges. Also, what a judge does is independent of the accommodation/modification decision. That is, a judge is responsible for deciding on a winner or loser and/or helping a jury get to that point. The modification/accommodation piece of it is not a judicial function even if it might affect the ultimate result. Thus, a strong argument exists that determining the outcome of the reasonable modification/accommodation request is not a judicial function and therefore, not a judicial act.
- Whether this decision will lead to more people challenging a judge failure to accommodate/modify their practices, policies, and procedures in order to accommodate a person with a disability remains to be seen. In my experience, I have seen that there can be serious professional risks to an attorney for taking on such cases. Taking on a court system or an individual judge can be done, but it has to be done very carefully, such as we discussed here.