[Congressional Record Volume 151, Number 88 (Tuesday, June 28, 2005)]
[Senate]
[Pages S7523-S7525]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CORNYN:
  S. 1318. A bill to protect States and Federal judges by clarifying 
that Federal judicial immunity covers all acts undertaken by judges 
pursuant to legal authority; to the Committee on the Judiciary.
  Mr. CORNYN. Mr. President, I rise today to introduce important 
legislation to protect State and Federal judges against civil lawsuits, 
by clarifying that Federal judicial immunity covers all acts undertaken 
by judges pursuant to legal authority.
  To put it mildly, these are not easy days for members of the State 
and Federal judiciary. I am unaware of any member of this body who has 
not, at one time or another, criticized a member of the State or 
Federal judiciary for issuing one ruling or another--including the 
numerous controversial rulings that have captured the Nation's 
attention in recent years. Indeed, in each of the two previous 
Congresses, the Senate unanimously approved strongly worded resolutions 
``strongly disapprov[ing]'' the infamous decision of the U.S. Court of 
Appeals for the Ninth Circuit striking down the voluntary recitation of 
the Pledge of Allegiance in public schools. See S. Res. 71 (108th 
Cong.) and S. Res. 292 (107th Cong.).
  To be sure, judges are supposed to follow and apply the law--not 
legislate from the bench. On numerous occasions, I have spoken out 
against instances of judicial activism. But there are appropriate and 
inappropriate ways to register one's disapproval and disagreement.
  The First Amendment guarantees every American the right to express 
disagreement with government officials--including State and Federal 
judges. There is certainly nothing inappropriate about criticizing 
judicial rulings with which one sharply disagrees. But it is entirely 
inappropriate to threaten the impeachment and removal of judges simply 
for issuing rulings with which one disagrees. It is inappropriate to 
file lawsuits against judges in the hope of pestering or bankrupting 
them in retaliation for judicial actions one does not like. And it is 
absolutely deplorable for any person to undertake violence, threats of 
violence, or other illegal acts against judges.
  As a former State trial judge and State supreme court justice of 13 
years, who has a number of close personal friends who still serve on 
the bench today, I am outraged by recent acts of courthouse violence. I 
personally know judges and their families who have been victims of 
violence. I have grieved with those families. And during the Easter 
recess earlier this year, I met with an old friend, a Federal judge in 
Texas, to make sure that we are doing everything that we can to protect 
our judges and courthouse personnel against further acts of violence. 
So I look forward to legislation that will soon be introduced to 
strengthen courthouse security and to otherwise bolster protections 
against violence for judges, their staff, and their families.
  Today I would like to introduce legislation to protect State and 
Federal judges against a different kind of threat--a lesser threat than 
violence to be sure, but an important one nonetheless: the threat of 
civil litigation in retaliation for unpopular judicial actions. For 
centuries, our common law

[[Page S7524]]

has protected judges against civil litigation by conferring upon them 
courtroom immunity. It has long been understood that judicial immunity 
is an essential element of protecting judicial independence and 
ensuring that judges have the ability and freedom to do their jobs. As 
the Senate Judiciary Committee noted less than a decade ago: ``Even 
when cases are routinely dismissed, the very process of defending 
against those actions is vexatious and subjects judges to undue 
expense. More importantly, the risk to judges of burdensome litigation 
creates a chilling effect that threatens judicial independence and may 
impair the day-to-day decisions of the judiciary in close or 
controversial cases.'' Federal Courts Improvement Act of 1996--S. 1887, 
S. Rep. No. 104-366 at 37 (1996).

  Throughout its legal existence, judicial immunity has been for the 
most part a creature of the common law. But there have been times when 
Congress has seen fit to step in and to strengthen judicial immunity--
particularly when the courts have undertaken an unduly narrow view. In 
1996, for example, Congress enacted the Federal Courts Improvement 
Act--important legislation that included a provision reversing a U.S. 
Supreme Court decision in order to expand the protections of judicial 
immunity.
  It is appropriate for Congress once again to consider legislation to 
strengthen judicial immunity. This time, I hope Congress will respond 
to a recent decision by a Federal district court in Fort Worth, TX. 
That decision applied recent Supreme Court precedents in good faith, 
but in a manner that leaves judges potentially exposed to vexatious 
civil litigation. In Alexander v. Tarrant County, the Federal district 
court held that traditional judicial immunity does not protect State 
judges acting in their administrative capacities. Specifically, the 
court held that State judges authorized under State law to supervise 
local correctional facilities could not claim judicial immunity against 
suit. As a recent news report and editorial by the San Antonio Express-
News make clear, that decision has left judges throughout the State of 
Texas in a state of uncertainty and anxiety about their exposure to 
lawsuits and liability. As the editorial rightly argues, the Alexander 
ruling, and I quote, ``has sent shock waves through the judiciary. . . 
. Judges have a tough job. They should not be burdened with defending 
themselves for the administrative duties they perform.'' I ask 
unanimous consent that a copy of those articles be printed in the 
Record at the close of my remarks.
  The legislation I introduce today is simple and straightforward. It 
protects State and Federal judges against civil lawsuits, by clarifying 
that Federal judicial immunity covers all acts undertaken by judges 
pursuant to legal authority. Specifically, it provides that State and 
Federal judges shall be immune against any Federal civil cause of 
action respecting the discharge of any legislatively or 
constitutionally authorized duty, except for actions involving malice. 
The legislation would not preempt any judicial immunity that already 
exists under current law.
  This legislation was drafted with the support of two Texas State 
judges--the Honorable Dean Rucker, who presides over the 318th District 
Court in MidIand, and who chairs the Judicial Section of the State Bar 
of Texas, and the former chairman, the Honorable Mark Atkinson of the 
Harris County Criminal Court. I want to thank them both for their 
service to Texas and for their help with this legislation, and I ask 
unanimous consent that their letter of support be printed in the Record 
at the close of my remarks. I am also grateful for the technical 
assistance provided by the Administrative Office of the U.S. Courts, as 
well as by the office of Texas Attorney General Greg Abbott, which has 
been intimately involved in the defense State judges against vexatious 
litigation. Finally, I am especially grateful for the support of the 
Chief Justice of the Texas Supreme Court, Wallace Jefferson, and I ask 
unanimous consent that his letter of support likewise be printed in the 
Record at the close of my remarks.
  I hope that legislation to protect judges against deplorable acts and 
threats of violence will soon be introduced and quickly be enacted, and 
I hope that the legislation I introduce today to protect judges against 
vexatious litigation will likewise be considered favorably by my 
colleagues.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Judges Skittish Without Immunity

                          (By Zeke MacCormack)

       Kerrville.--Becky Harris didn't get far with her most 
     recent status report to the Kerr County Juvenile Board on the 
     detention center she manages.
       After just two words, she was stopped by state District 
     Judge Steve Ables, who said such a briefing could leave him 
     and other board members ``buck naked'' and personally liable 
     in the event of a lawsuit.
       The concern stemmed from a recent federal judge's ruling 
     that ``judicial immunity'' enjoyed by judges for courtroom 
     duties doesn't necessarily extend to administrative duties 
     they perform.
       Judges still have qualified immunity as elected officials, 
     but a ruling last fall by U.S. District Judge Terry Means in 
     a lawsuit against 19 criminal court judges in Tarrant County 
     has sent a chill across the Texas bench.
       ``It's got judges spooked all over the state,'' Kerr County 
     Judge Pat Tinley, one of three judges on the juvenile board, 
     said last week. ``Until the Legislature reduces their 
     (judges') exposure, they're all going to be as jumpy as the 
     dickens.''
       Legislation now pending in Austin offers only a partial 
     fix. It would bolster protections for judges acting in regard 
     to adult probation departments, but not on juvenile matters, 
     such as the aborted April 13 briefing in Kerr County.
       ``If we know what Becky's doing, and it turns out that 
     something goes south, and there's a huge incident, the fact 
     that we knew about it puts us maybe in a role of getting 
     sued,'' Ables said, according to a transcript of the meeting.
       Until legislation can solidify immunity for judges, he 
     said, ``we're telling everybody who's dealing with any type 
     of administrative duty, `Stay as far away from it as you can. 
     Don't make any decisions.' ''
       State District Judge Karl Prohl, another member of the 
     juvenile board, suggested Harris instead brief county 
     commissioners, who assumed oversight of the center Feb. 14 
     when the county closed on the $1.9 million purchase of it.
       But, he told her, ``we can visit on an individual basis as 
     friends.''
       Dean Rucker, a district judge in Midland who is chairman of 
     the State Bar of Texas judicial section board, said he's 
     ``always had some concern about how far our judicial immunity 
     went,'' adding the federal ruling ``seems to indicate it has 
     some limits.''
       The Tarrant County case stems from the 2001 pneumonia death 
     of Bryan Alexander, 18, of Arlington, a detainee at a 350-bed 
     detention center in Mansfield run by Correctional Services 
     Corp.
       Serving a six-month sentence on a misdemeanor, Alexander 
     died after days of coughing up blood and seeking medical 
     help. A nurse at the center was convicted in 2002 of 
     negligent homicide for failing to give adequate care, got 
     four years of probation and was ordered to pay $11,000 in 
     restitution.
       In 2003, Alexander's family won $38 million in a negligence 
     lawsuit in state court against the nurse and Correctional 
     Services. That's on appeal.
       The family then filed a federal civil rights lawsuit 
     against all Tarrant County judges with criminal court 
     jurisdiction, in their individual capacity.
       Last fall, Means let the lawsuit continue after denying a 
     motion to dismiss that was based on a claim of judicial 
     immunity. Means said the lawsuit's allegations are that 
     judges performed administrative acts that fell outside their 
     statutorily required duties regarding the center.
       The local government code in Texas law says district judges 
     trying criminal cases shall create community supervision and 
     corrections departments and are entitled to help manage them. 
     ``What Judge Means is saying is, `If you're going to assume 
     those administrative duties, act responsibly,' '' said Mark 
     Haney, attorney for Alexander's family.
       He said the Tarrant County judges approved an inadequate 
     budget for the center, hired an operator for it who had 
     problems elsewhere, and approved a policy that said ill 
     detainees could not seek outside medical help until they'd 
     taken over-the-counter drugs for three days. ``You can't just 
     give out a budget and then turn a blind eye to 
     consequences,'' Haney said.
       Assistant Attorney General David Harris, who is helping 
     defend the judges, said ``most judges were under the 
     impression, I believe, that as long they were performing 
     tasks assigned to them by the Legislature and making their 
     best efforts, they would be protected by judicial immunity.''
       The judges had no direct management role in the center, he 
     said, and relied on the operator and staff to act 
     responsibly.
       Harris has spoken to judges at conferences on how the case 
     might affect them. ``They need to be aware of the fact that 
     they are not always acting in a judicial capacity, even if 
     they think they are,'' he said.
       He wouldn't comment on the deliberations of the Kerr County 
     Juvenile Board. ``I'm not advocating that any of them shirk 
     their responsibility as a judge. I want them to approach 
     their duties informatively, and to act discreetly and with an 
     eye toward liability,'' he said.

[[Page S7525]]

       Harris is slated to testify Tuesday before the Senate 
     criminal justice committee on a bill sponsored by Sen. John 
     Whitmire, D-Houston.
       A Whitmire aide said the bill, which passed the House last 
     month, clarifies that judges have judicial immunity when 
     forming an adult probation department, passing its budget, 
     naming its director and approving a community justice plan.
       But it doesn't address juvenile boards that judges also 
     serve on, because those duties are covered by a different 
     statute, the aide said.
       Haney said insulating judges from liability could backfire. 
     ``If there is no accountability, then I think it invites 
     irresponsible behavior,'' said Haney, who expressed amazement 
     at the Kerr Juvenile Board discussion. ``That is just as 
     irresponsible as acting with deliberate indifference,'' he 
     said.
       Some Kerr County commissioners also expressed concern about 
     it, with Commissioner Jonathan Letz describing the juvenile 
     board's posture as ``head in the sand.''
       Commissioner Buster Baldwin said limited oversight by the 
     judges might have fostered the financial woes that left the 
     county with the choice of buying the insolvent juvenile 
     center or losing it.
       Reacting later, Ables, the district judge, said the 
     juvenile board was more closely involved in supervising the 
     facility before it was sold.
       ``Everybody (on the board) felt we could be involved 
     because we had judicial immunity,'' until word of the Tarrant 
     County ruling circulated early this year, he said.
                                  ____


                  [From The San Antonio Express-News]

                       Extend Immunity for Judges

       State lawmakers should protect judges from litigation 
     spawned by the administrative duties they perform off the 
     bench.
       A federal court recently ruled that the immunity judges 
     have for the duties they perform in the courtroom does not 
     extend to their administrative actions, a decision that could 
     have a big impact across the state.
       In many counties, district court judges who try criminal 
     cases are charged by state law with establishing community 
     supervision and corrections departments.
       However, the law does not provide the judges with 
     protection from litigation for the decisions they make in 
     that capacity.
       As Express-News staff writer Zeke MacCormack reported, a 
     federal court judge's ruling in a Tarrant County case has 
     sent shock waves through the judiciary.
       In that case, U.S. District Judge Terry Means denied a 
     motion to dismiss a lawsuit filed against the 19 Tarrant 
     County criminal court judges by the family of a man who died 
     in custody.
       The judges claimed judicial immunity. Means ruled they did 
     not possess it for administrative acts.
       Legislation pending in Austin would give judges judicial 
     immunity when administering an adult probation department and 
     providing a community justice plan.
       However, it doesn't address their actions as members of the 
     juvenile boards that oversee juvenile detention centers and 
     juvenile probation departments across the state.
       Judges have a tough job. They should not be burdened with 
     defending themselves for the administrative duties they 
     perform.
                                  ____

                                                 Judicial Section,


                                           State Bar of Texas,

                                San Antonio, Texas, June 27, 2005.
     Senator John Cornyn,
     U.S. Senate, Hart Office Building, Washington, DC.
       Dear Senator Cornyn: On behalf of the judges of the State 
     of Texas, we would like to thank you for your proposed 
     legislation addressing the important issue of immunity for 
     judges in the performance of their duties.
       The issue of judicial immunity for the performance of 
     certain administrative duties was one of the Texas 
     judiciary's highest legislative priorities during the recent 
     regular session of the legislature. Governor Perry has now 
     signed legislation that provides judicial immunity to Texas 
     judges in the oversight of their local community supervision 
     and corrections departments.
       Your efforts to address the issue of judicial immunity at 
     the federal level are of the utmost importance to Texas 
     judges. If adopted, the legislation you have crafted will 
     provide comprehensive immunity for judges in the performance 
     of their statutorily and constitutionally authorized duties.
       We extend our heartfelt appreciation for your efforts and 
     for your steadfast support of the judiciary.
           Yours very truly,
     Dean Rucker,
       Chair, Judicial Section, State Bar of Texas.
     Mark Atkinson,
       Chair, Criminal Justice Legislative Committee Judicial 
     Section, State Bar of Texas.
                                  ____



                                   The Supreme Court of Texas,

                                        Austin, TX, June 27, 2005.
     Senator John Cornyn,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
       Dear Senator Cornyn: The Supreme Court of Texas is aware 
     that Texas judges are concerned about a recent federal 
     judge's ruling that the immunity judges have traditionally 
     been accorded, does not necessarily extend to administrative 
     duties they perform. So worried are Texas judges, in fact, 
     that the Judicial Section of the State Bar of Texas made 
     judicial immunity for administrative duties one of the its 
     highest legislative priorities during the recent regular 
     session of the Texas Legislature.
       As Chief Justice of The Supreme Court of Texas, 
     constitutionally charged with the responsibility of 
     overseeing the administration of justice in the State, I 
     share these concerns. The practical impact of limiting a 
     doctrine that has offered protection for well over a century 
     in this country--and centuries before in England--may be a 
     reluctance by Texas judges to discharge their administrative 
     duties, many of which are critical to a healthy, functioning 
     judicial branch.
       Texas citizens will be the unwilling victims of this 
     reluctance. Contrary to suggestions in the media, judicial 
     immunity was not fashioned for the protection or benefit of 
     judges. Rather, the doctrine was intended to benefit the 
     public, who has a keen interest in a judiciary that functions 
     with independence and without fear of the personal 
     consequences of discharging their duties.
       I commend the leaders within the Texas judiciary who worked 
     hard this session to press for legislation that protects the 
     independence of the judiciary, through these reform efforts 
     and others. I likewise applaud the Governor and our 
     distinguished legislators who, through the stroke of a pen 
     and the casting of a vote, tell Texas judges that they 
     support judicial independence, not only with impressive 
     rhetoric, but through recordable actions.
       Despite these successes on the state level, more 
     comprehensive reform may be in order. I support your efforts 
     to do so at the federal level and extend my sincere 
     appreciation for your continued support of the judiciary.
           Sincerely,
                                             Wallace B. Jefferson,
                                                    Chief Justice.
                                 ______