STALEY, Circuit Judge.
The almost bizarre and complex factual background which prompted the present litigation has its genesis in certain events which occurred in the early 1950's. On October 29, 1950, William J. Bauers, Jr., the appellant herein, with two other inmates escaped from the Annandale Reformatory in Hunterdon County, New Jersey, and embarked upon a crime spree that carried him through Hunterdon and Essex Counties, New Jersey. Appellant's freedom, however, was short-lived; he was apprehended, charged and indicted for crimes committed in Essex County. He pleaded non vult to the charges of assault with intent to rob and auto larceny and was sentenced by the Essex County Court to four to six years on each indictment.
In the interim, the Hunterdon County Grand Jury had returned indictments against him for the escape from the reformatory and auto larceny. Although these indictments were returned on January 3, 1951, appellant was not tried for the offenses alleged therein until May of 1953. During this entire period, he was serving the sentence imposed upon him by the Essex County Court. When he eventually did appear in the Hunterdon County Court, he requested counsel, counsel was appointed, and a jury was selected. The Criminal Minutes indicate that all these events transpired prior to 10:15 A.M. on the day of trial. The factual elements surrounding the appointment of counsel are not greatly dissimilar from the case of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), but no issue concerning this is involved here.
After a brief recess, Bauers pleaded guilty and was sentenced immediately to a term of two to three years on each indictment, the sentences to run concurrently with any sentence he was then serving (and apparently concurrently with each other). The state prison records indicate that Bauers had completed serving the Hunterdon County sentences prior to his release on parole on the Essex County sentences.
In February of 1963, Bauers applied to the Hunterdon County Court to dismiss the 1951 indictments and to vacate the sentences imposed on him after he had pleaded guilty. He contended that the indictments were illegal because he was a juvenile when the offenses were committed. The lower court denied his application, but the Appellate Division of the Superior Court of New Jersey reversed,
Subsequently, Bauers instituted the present suit,
On this appeal, the sole issue raised is whether the defendant, acting as the Hunterdon County Prosecutor, is immune from suit under the Civil Rights Act, 42 U.S.C. § 1983, R.S. § 1979.
There is no question that Picking would be dispositive of the immunity issue presently before us. Consequently, the only portion of that opinion which we reconsider deals with the liability of a judicial officer under the Civil Rights Act of 1871. In Picking, it was decided that no immunity would be afforded to a justice of the peace, a member of the minor judiciary in Pennsylvania; however, the language of the opinion is far more sweeping:
While we do not choose to quarrel with the propriety of this disposition at the time it was made, we do believe that the Act even then would have been at least equally susceptible to a contrary construction.
After making the concededly "big assumption" "that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere," the Court answered its prophetic question:
We are not alone in our belief that the construction given R.S. § 1979 in Tenney sheds new light on the situation which confronted us in Picking. Although Picking had been the cause of some immediate concern, see Note, 46 Colum.L.Rev. 614 (1946), it was not until after Tenney that its pronouncement on immunity became the object of wholesale disavowal. In fact, five circuits explicitly stated that Tenney had in effect overruled Picking. Stift v. Lynch, 267 F.2d 237 (C.A.7, 1959); Cuiksa v. City of Mansfield, 250 F.2d 700 (C.A.6, 1957), cert. denied, 356 U.S. 937, 78 S.Ct. 779, 2 L.Ed.2d 813 (1958); Kenney v. Fox, 232 F.2d 288 (C.A.6), cert. denied sub nom. Kenney v. Killian, 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66 (1956); Tate v. Arnold, 223 F.2d 782 (C.A.8, 1955); Morgan v. Sylvester, 125 F.Supp. 380 (S.D.N.Y., 1954), aff'd, 220 F.2d 758 (C.A.2), cert. denied, 350 U.S. 867, 76 S.Ct. 112, 100 L.Ed. 768 (1955); Francis v. Crafts, 203 F.2d 809 (C.A.1), cert. denied, 346 U.S. 835, 74 S.Ct. 43, 98 L. Ed. 357 (1953). This view has also been adopted by several district courts in this circuit. Woodruff v. City & County of Philadelphia, 38 F.R.D. 468 (E.D.Pa., 1965); Hardy v. Kirchner, 232 F.Supp. 751 (E.D.Pa., 1964); Ellis v. Wissler, 229 F.Supp. 196 (E.D.Pa., 1964); Perkins v. Rich, 204 F.Supp. 98 (D.Del., 1962), aff'd per curiam, 316 F.2d 236 (C.A.3, 1963); Ginsburg v. Stern, 125 F.Supp. 596 (W.D.Pa., 1954), aff'd on other grounds, 225 F.2d 245 (C.A.3, 1955).
Though we choose to make an independent analysis of the issue before us, our rationale differs little from what was said in Tate v. Arnold, supra:
and in Francis v. Crafts, supra:
Rather than rely on the plethora of cases which have held judicial officers to be immune from suit under the Civil Rights Act,
First, it is well settled that a statute should not be considered in derogation of the common law unless it expressly so states or the result is imperatively required from the nature of the enactment. Mobile Gas Service Corp. v. FPC, 215 F.2d 883 (C.A.3, 1954), aff'd, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956); American District Telegraph Co. v. Kittleson, 179 F.2d 946 (C.A.8, 1950); Scharfeld v. Richardson, 76 U.S.App.D.C. 378, 133 F.2d 340, 145 A.L.R. 980 (1942). There can be little doubt that the concept of judicial immunity is deeply rooted in Anglo-American law. In Yates v. Lansing, 5 Johns, R., (N.Y.) 282, 291 (Sup.Ct. of Judicature, 1810), Chief Justice Kent noted that:
His concluding remarks — that the statute there being construed could not be read as impliedly abrogating judicial immunity — are peculiarly applicable here: "Ought such a sacred principle of the common law * * * be subverted without an express declaration to that effect?" Id. at 296. For a further review of the historical precedents on judicial immunity see Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347-354, 20 L.Ed. 646 (1871).
The statute before us also has no express declaration to that effect; nor does the legislative history adequately support the conclusion that Congress intended to dissolve judicial immunity.
The second basis upon which we ground our conclusion that the traditional concept of judicial immunity remained undisturbed by the enactment of the Civil Rights Act finds its support in the maxims of judicial restraint as classically announced by Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (concurring opinion). Characterizing the approach a court should take when confronted with a case such as the one we are presently considering, he stated that:
This technique was employed by the Supreme Court in Tenney, and the constitutional issue of whether Congress had the power to abrogate legislative immunity was avoided by the Court's conclusion that Congress did not intend to abolish the immunity.
In Tenney, the Court did not spell out the particular constitutional barrier which might be raised to void such Congressional action. Though we would not be compelled to go further, we choose to spell out at least one of perhaps several constitutional questions which would necessarily arise if the Act were construed so as to abrogate judicial immunity.
Article 4, § 4 of the United States Constitution provides: "The United States shall guarantee to every State in this Union a Republican Form of Government * * *." The framers of the Constitution clearly evinced their belief that a separate and independent judiciary is an indispensable element of a republican form of government. See The Federalist, pp. 236, 303-305, 488 et seq., 494 et seq. We believe that abrogation of judicial immunity by Congress would
Our belief that the Act would violate the Guarantee Clause if construed to abrogate judicial immunity does not necessarily mean that either this court or the Supreme Court would have the power to remedy the wrong. The Supreme Court has held in a long line of cases, beginning with Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849), that Congress is charged with the enforcement of Art. 4, § 4. Alleged violations of this clause have been held to present "political questions" which are non-justiciable. See Baker v. Carr, 369 U.S. 186, 218-226, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962). Even if this case fell within that class labelled "non-justiciable," we believe that would be all the more reason why we should not impute to Congress the intention to blatantly violate that trust.
Despite the wealth of cases holding Art. 4, § 4 violations to be non-justiciable, we think that none would govern the instant case. The numerical weight of those cases have involved state action, but as the Court pointed out in Baker v. Carr, supra, challenges to Congressional action based upon the clause have likewise been held non-justiciable. Id. at 224-225, 82 S.Ct. 713-714. The cases cited by the Court, however, involve extraordinary circumstances which would not be present if the Civil Rights Act were construed to abolish judicial immunity. The absence of any overbearing political factor and the presence of substantial precedent to serve as criteria might well require a whole new analysis of the Guarantee Clause and non-justiciability. Fortunately, our task is only to state the problem, not to resolve it. Compare the majority opinion in Baker v. Carr with Pacific States Tel. & Tel. Co. v. State of Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912); compare the concurring opinion of Douglas, J., 369 U. S. at 241, 82 S.Ct. at 723, with the dissenting opinion of Frankfurter, J., id. at 266, 82 S.Ct. at 737.
The construction we place on the Civil Rights Act not only avoids this constitutional issue, but is also in accord with the Court's mandate that in Civil Rights Act cases the "lodestar of adjudication has been that the statute `should be construed so as to respect the proper balance between the States and the federal government * * *.'" Stefanelli v. Minard, 342 U.S. 117, 121, 72 S.Ct. 118, 121, 96 L.Ed. 138 (1951). See also Note, 68 Harv.L.Rev. 1229, 1231 (1955); Note, 36 Ind.L.J. 317, 334-335 (1961).
In deciding the question of whether a prosecuting attorney is liable for acts done in his official capacity, we must decide whether his duties are sufficiently judicial as to cloak him with the same immunity afforded judges or are so closely related to those duties of law enforcement officials as to amerce him with potential civil liability for his imprudent actions. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed. 492 (1961); Comment, 18 Ark.L.Rev. 81, 84-92 (1964). Analogy could support either conclusion, but we believe that both reason and precedent require that a prosecuting attorney should be granted the same immunity as is afforded members of the judiciary. The reasons are clear: his primary responsibility is essentially judicial — the prosecution of the
The case of Egan v. City of Aurora, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed.2d 741 (1961), does not require a contrary result. In that Civil Rights Act case, the Supreme Court in a per curiam opinion affirmed in part and vacated and remanded to the court of appeals the causes against certain individual defendants (one of whom was corporation counsel for the City of Aurora, see Egan v. City of Aurora, 275 F.2d 377, 378 (C.A.7, 1960)) because the opinion of the Court of Appeals was "not explicit as respects the grounds for dismissing the complaint * * *." 365 U.S. at 515, 81 S.Ct. at 685. This disposition, especially since the Court failed to expressly mention corporation counsel as an individual defendant, can hardly be cited for the proposition that a prosecuting attorney is not immune.
The immunity of a prosecutor, however, is not without limitation; it is not absolute. The immunity of judges, from which the immunity of prosecutors is derivative, does not extend to acts which are clearly outside their jurisdiction. In Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, the Supreme Court established the guidelines for determining the scope of judicial immunity:
The clear-absence-versus-mere-excess-of-jurisdiction distinction has, in substance, been adopted and applied in Civil Rights Act cases brought against judges and other judicial officers. Robichaud v. Ronan, 351 F.2d 533 (C.A.9, 1965); Corsican Productions v. Pitchess, 338 F.2d 441 (C.A.9, 1964); Spires v. Bottorff, 317 F.2d 273 (C.A.7, 1963); Lewis v. Brautigam, 227 F.2d 124, 55 A.L.R.2d 505 (C.A.5, 1955). Because immunity is conferred on an individual solely by virtue of the office he holds, reason requires us to adopt a rule which does not provide immunity for those acts which are done clearly outside the authority or jurisdiction of the office.
Accepting, as we must, the truth of the allegations as pleaded in appellant's complaint, we now proceed to examine those facts within the legal framework we have set forth above. The main thrust of the complaint is that the defendant knew or should have known that appellant had not reached the age of eighteen when the alleged offenses were committed, and that in procuring the indictments against him and the resulting pleas, sentences and incarceration, appellant was denied his liberty without due process. Assuming arguendo that this denial of liberty and the denial of a speedy trial abridged appellant's constitutional rights,
We have already indicated that the primary responsibility of a prosecutor is to vindicate the wrongs which have been committed against society. This is precisely what appellee was doing when the denial of appellant's liberty occurred. The mere fact that the New Jersey Legislature had excised from his responsibility the prosecution of individuals who were under the age of eighteen when they committed acts which would otherwise be punishable offenses does not indicate that he was acting clearly outside his jurisdiction. On the contrary, it would be difficult to envision a case which was as close to his jurisdiction, but, yet, in excess of it.
As to the denial of a speedy trial, even if we assume that the defendant was responsible for the delay, we believe that motions for continuances or other causes of delay are well within the jurisdiction of the prosecutor.
Having decided these substantive questions, one further matter remains for our consideration. As this case comes before us, its posture is not greatly dissimilar from that of Tenney v. Brandhove, as it came before the Ninth Circuit, 183 F.2d 121 (1950), and the Supreme Court, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019. The district court in Tenney had dismissed the complaint
The judgment of the district court will be affirmed.
KALODNER, Chief Judge (concurring in the result).
I concur in the overruling of our holding in Picking v. Pennsylvania R. Co., 151 F.2d 240 (3 Cir., 1945).
I also concur in the affirmance of the District Court's Order dismissing the Complaint for the sole reason that in my opinion the sweep of the Civil Rights Act, 42 U.S.C.A. Sec. 1983, R.S. Sec. 1979 does not extend to a cause of action such as that which the Complaint asserts.
Since I am of the view that the Complaint fails to state a cause of action under the Civil Rights Act, I do not reach the majority's holding with reference to the extension of the doctrine of "judicial immunity" to prosecuting attorneys.
HASTIE, Circuit Judge (concurring in the result).
I agree that Picking v. Pennsylvania Railroad, 3d Cir., 1945, 151 F.2d 240, should be overruled. But I do not share the view of the majority that the doctrine of "judicial immunity" protects whatever acts of a public prosecutor are "done in his official capacity" or are not "clearly outside his jurisdiction".
However, I am satisfied that the present complaint, charging a prosecutor with erroneously prosecuting the plaintiff as an adult when he should have known that the plaintiff was under the age of 18, does not state such a deprivation of a federally secured right as is comprehended by the original Civil Rights Act, 42 U.S.Code § 1983, formerly R.S. § 1979, upon which this claim is predicated.
Thus, I agree that the complaint here fails to state a cause of action, but for a reason different from that upon which the majority place principal reliance.
BIGGS, Circuit Judge (dissenting).
There are two issues presented by this appeal: first, is the defendant, County Prosecutor Heisel, immune from suit brought under the Third Civil Rights Act, 42 U.S.C. § 1983, R.S. § 1979, and, second does the complaint state a cause of action against him?
To deal with the second question first, I had thought that this was answered adequately and in the plaintiff-appellant's favor by our decisions in Basista v. Weir, 340 F.2d 74 (1965), and Anderson v. Haas, 341 F.2d 497 (1965). In the Anderson case Chief Judge Staley concluded, id. at 502, that the contention of the police officers that they acted in good faith and without malice could be no defense in a civil action brought under Section 1983. But surely and very finally the scope of the Civil Rights Acts has been defined in United States v. Price, 86 S.Ct. 1152 (1966), and the opinion of the Supreme Court in Price certainly is not in accord with the opinion of this court and requires reversal of this tribunal's decision unless Prosecutor Heisel be found to be immune from a suit such as that at bar. By its Price decision the Supreme Court has revitalized the "Reconstruction" Civil Rights Acts.
In respect to the immunity issue it was pointed out in Picking v. Pennsylvania R. Co., 151 F.2d 240, 250 (3 Cir. 1945), now expressly overruled by this court, that the phrase "every person" of Section 1983 and the phrase "any person" of Section 1 of the Third Civil Rights Act, Act of April 20, 1871,
On reading the legislative history of the Civil Rights Acts I find it is impossible to conclude that Congress created any barrier of state office, other than legislative, behind which federal power, conferred
Senator Pool, after referring briefly but emphatically to the conditions which had brought Congress to the enactment of the First Civil Rights Act, 14 Stat. 27, stated: "There is no legislation that could reach a State to prevent its passing a law [in denigration of the First Civil Rights Act]. It [federal legislation] can only reach the individual citizens of the State in the enforcement of law. You have, therefore, in any appropriate legislation, to act on the citizen, not on the State. If you pass an act by which you make it an indictable offense for an officer to execute any law of the State by which he trespasses upon any of these rights of the citizen it operates upon him as a citizen, and not as an officer."
The last sentence quote, in my view, indicates that Congress intended the Civil Rights Acts to be applicable to every person as citizen and not as state officer. An official action offending the Acts must be deemed to have been committed by a citizen qua citizen.
The majority opinion contains the interesting suggestion based upon Article IV, Section 4, of the Constitution, that the Acts would be unconstitutional if the
Assuming that an issue of constitutionality is reached here it should be decided only upon a full record and only if necessary. See Villa v. Van Schaick, 299 U.S. 152, 155-156, 57 S.Ct. 128, 81 L.Ed. 91 (1936), and Honeyman v. Hanan, 300 U.S. 14, 25-26, 57 S.Ct. 350, 81 L.Ed. 476 (1937). The fact is that the present decision emasculates the Civil Rights Acts in the Third Circuit. This is unfortunate for there is need for them in this Circuit as elsewhere.
For these reasons, I must respectfully dissent.
FREEDMAN, Circuit Judge (dissenting).
I am not prepared to hold that a prosecutor, as such, enjoys the full privilege of a judicial officer. A prosecutor, although a public official, is in the actual trial of a case simply the government's lawyer, just as his adversary is the defendant's lawyer. Both of them are bound by the standards of professional ethics, although the prosecutor often is called a quasi-judicial officer, a characterization which describes his obligation to his client, the State, not to seek to win a case against an innocent defendant or to win a good case by unfair means.
I would not equate the trial conduct of a prosecutor with the adjudicatory role of a judge, whose duties involve a process so delicate that it would be undesirable to subject him to inquiry by suit under the Civil Rights Act. An advocate stands in a totally different position and I do not believe that the state's advocate should be any more immune than the defendant's advocate, who is licensed by the State, or its police officers. I therefore dissent from the view that a prosecutor is in all cases immune from liability under the Civil Rights Act.
On the other hand, there may well be aspects of the duties of a prosecutor in which he must exercise his judgment in a manner which is truly quasi-judicial in nature. That area therefore should be included within the scope of a partial, quasi-judicial immunity. The prosecutor's decision as to the appropriate court in which prosecution should be had is a matter in which I would hold a prosecutor immune unless there appears an intentional and malicious abuse of his authority.
I am reinforced in this view by the circumstances in which the decision below was rendered. As the record comes to us the district judge simply entered an order directing the dismissal of the complaint because the court had no jurisdiction and at the same time ordered the clerk to file the complaint together with the order of dismissal. As we pointed out in Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965), where a similar order was entered and where, as here, no service was made on the defendants, plaintiff is entitled to an opportunity to be heard in the court below and defendants have appropriate means under the Rules of Civil Procedure to move for the dismissal of the action or for summary judgment. Thereafter we will have the benefit of the conclusion the district judge arrived at after hearing the contending parties on the jurisdictional question and if need be, on the merits.
I would therefore vacate the dismissal of the complaint and remand the cause for proceedings in the regular course of litigation under the Rules of Civil Procedure.
Congressman Arthur of Kentucky assailed § 1 of the Bill, stating:
Congressman Lewis, also of Kentucky and another opponent of the Bill, charged that:
Although these statements appear strong on the surface, under careful scrutiny they stand for little more than opposition remarks. The Supreme Court has recently reiterated the weight which should be accorded such remarks:
Unanimity of those favoring and those opposing legislation is, of course, of greater value. Apex Hosiery Co. v. Leader, 310 U.S. 469, n. 15 at 495, 60 S.Ct. 982, 84 L.Ed. 1311 (1940). The only situation where opponents' statements have relevance is where the proponents made no response to them. State of Arizona v. State of California, 373 U.S. 546, n. 85 at 583, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The circumstances surrounding the debate on H.R. 320, especially as to the two quoted speeches, indicate that responses could not be expected. In the first place, the speeches on the legislation which eventually emerged as R.S. § 1979 consume hundreds of pages of the Congressional Globe. Even more important is that the two statements quoted above were made at times when response would have been unlikely. The first was made at a night session, while the second was delivered during a Saturday session.
We also believe that appellant's denial of a speedy trial probably did not violate his constitutional rights. See Ciesielski v. Ohio, 383 U.S. 411, 86 S.Ct. 1066, 15 L.Ed.2d 841, appeal dismissed March 7, 1966; United States ex rel. Von Cseh v. Fay, 313 F.2d 620 (C.A.2, 1963) and cases and authorities cited therein; see also United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (Feb. 23, 1966).