CHURCH OF SCIENTOLOGY INT'L, Plaintiff,
v.
James G. KOLTS, Defendant.
No. CV 93-1390-RSWL (EEx).
United States District Court,
C.D. California.
Feb. 16, 1994.
Litigant filed action seeking declaratory and injunctive relief based on
alleged violations of its due process rights by special master appointed to
serve in consolidated cases involving it. On motion to dismiss, the District
Court, Lew, J., held that: (1) claim for violation of due process rights
conferred on court subject matter jurisdiction to hear the case; (2) sovereign
immunity did not bar suit against special master; (3) plaintiff could not
state claim for violation of Code of Conduct of United States Judges; and (4)
special master had absolute immunity against due process claims.
Motion granted in part and denied in part.
[1] FEDERAL COURTS
Party seeking to invoke district court's jurisdiction has burden of
establishing subject matter jurisdiction.
[2] FEDERAL COURTS
Litigant's allegations that its Fifth Amendment due process rights were
violated by special master's improper activities stated claim arising under
Constitution and thus complaint met "arising under" Constitution requirement
for purposes of federal subject matter jurisdiction. 28 U.S.C.A. s 1331;
U.S.C.A. Const.Amend. 5.
[3] FEDERAL COURTS
Although Code of Conduct for United States Judges may have the force of law, it
does not provide a grant of federal subject matter jurisdiction. 28
U.S.C.A. s 1331.
[4] UNITED STATES
United States, as sovereign, is immune from suit except when it consents to be
sued.
[5] UNITED STATES
Waivers of government's immunity must be unequivocally expressed to be
effective.
[6] UNITED STATES
Government's consent to be sued must be construed strictly in favor of
sovereign and not enlarged beyond what language requires.
[7] UNITED STATES
Doctrine of sovereign immunity cannot be avoided merely by naming officers and
employees of the United States as defendants.
[8] UNITED STATES
When federal officer is sued in his or her representative capacity, suit is
actually sued against United States and it is barred by sovereign immunity.
[9] UNITED STATES
Suit is against sovereign if judgment sought would expend itself on public
treasury or domain, or interfere with public administration, or if effect of
judgment would be to restrain government from acting or to compel it to act.
[10] UNITED STATES
Sovereign immunity clearly will not protect officer from liability when actions
of officer are ultra vires his designated authority.
[11] UNITED STATES
Actions are ultra vires officer's designated authority for sovereign immunity
purposes when: (1) official's act is beyond limits of his statutorily
designated authority; (2) official is acting pursuant to unconstitutional
statute; or (3) official himself commits unconstitutional act or deprives
another of federal right.
[12] UNITED STATES
Suit for declaratory or injunctive relief against special master on grounds
that it violated litigant's right to due process of law was based on alleged
unconstitutional acts that were ultra vires special master's designated
authority; because government had no power to confer on special master
authority to act unconstitutionally, allegation that special master acted in
unconstitutional manner or beyond his delegated powers was suit against special
master in his personal or individual capacity, for sovereign immunity
purposes. U.S.C.A. Const.Amends. 5, 14.
[12] UNITED STATES
Suit for declaratory or injunctive relief against special master on grounds
that it violated litigant's right to due process of law was based on alleged
unconstitutional acts that were ultra vires special master's designated
authority; because government had no power to confer on special master
authority to act unconstitutionally, allegation that special master acted in
unconstitutional manner or beyond his delegated powers was suit against special
master in his personal or individual capacity, for sovereign immunity
purposes. U.S.C.A. Const.Amends. 5, 14.
[13] FEDERAL CIVIL PROCEDURE
A special master is an officer of the court.
[14] UNITED STATES
Sovereign immunity did not bar litigant's action alleging due process
violations by special master; relief sought would not impinge upon
government's treasury because any special master fees ordered to be repaid
would come directly from special master's own pocket, not from government
treasury, ordering special master to disclose any discussion or contacts he had
regarding underlying litigation or otherwise submitting to discovery on issue
of extrajudicial communications would not be aimed at government or require
government to take action on its own, and delay or disruption caused in
underlying cases would not reach level such that it was actually aimed at
sovereign.
[15] FEDERAL CIVIL PROCEDURE
In motion to dismiss for failure to state a claim, court must presume all
factual allegations of complaint to be true and draw all reasonable inferences
in favor of nonmoving party, but need not accept conclusory allegations or
unreasonable inferences at face value. Fed.Rules Civ.Proc.Rule 12(b)(6), 28
U.S.C.A.
[16] ACTION
Code of Conduct for United States Judges did not provide litigant private cause
of action for alleged violations of Code; litigant was not a member of class
for whose special benefit Code was enacted, there was no clear legislative
intent to create a private right of action in Code, and it would be
inconsistent with underlying purpose of legislative scheme of Code to imply
private right of action.
[17] FEDERAL CIVIL PROCEDURE
For purposes of a motion to dismiss for failure to state a claim, allegation of
appearance of impropriety by special master was sufficient to survive limited
pleading requirements of general pleading rule, based on violation of due
process right to impartial tribunal. U.S.C.A. Const.Amend. 5; Fed.Rules
Civ.Proc.Rules 8, 12(b)(6), 28 U.S.C.A.
[18] DECLARATORY JUDGMENT
Propriety of issuing declaratory judgment may depend upon equitable
considerations and should be informed by the teachings and experience
concerning functions and extent of federal judicial power. 28 U.S.C.A. s
2201.
[19] DECLARATORY JUDGMENT
District court would not grant plaintiff relief on due process claim for
declaratory judgment against special master based on his conduct during
litigation where declaratory judgment could greatly impede orderly
administration of justice and would seek to accomplish same result
litigant failed to obtain in its unsuccessful motion for recusal of special
master. 28 U.S.C.A. s 2201.
[20] DECLARATORY JUDGMENT
Considerations of the function and extent of federal judicial power should be
factor in the court's exercise of discretion when deciding whether a
declaratory judgment is proper. 28 U.S.C.A. s 2201.
[21] INJUNCTION
Injunctive relief is awarded at discretion of district court and can only be
given if there is showing of inadequate remedies at law and of serious risk of
irreparable harm.
[21] INJUNCTION
Injunctive relief is awarded at discretion of district court and can only be
given if there is showing of inadequate remedies at law and of serious risk of
irreparable harm.
[22] DECLARATORY JUDGMENT
Litigant was not entitled to injunctive relief in declaratory judgment action
to rectify past wrong through alleged violation of its due process rights or to
effectively remove special master from litigation; better method of resolution
for past wrongs was direct action for damages by requesting repayment of over
$200,000 in special master's fees and for costs, and removal of judicial
officer was properly pursued through established procedures for rehearing of
specific motions or removal of judicial officer. 28 U.S.C.A. ss 144, 455,
1292, 1361, 1651, 2202; U.S.Dist.Ct.Rules C.D.Cal., Civil Rule 7.16;
F.R.A.P.Rule 21, 28 U.S.C.A.
[23] DECLARATORY JUDGMENT
Ruling that special master had violated litigant's due process rights would be
collateral attack on district court judge's ruling in related litigation that
recusal of special master was not proper, and therefore claim was not properly
before the district court as a suit for declaratory judgment that special
master violated litigant's due process rights. U.S.C.A. Const.Amend. 5.
[24] FEDERAL CIVIL PROCEDURE
Absolute judicial immunity may properly be raised in support of motion to
dismiss for failure to state a claim.
[25] JUDGES
Judges are absolutely immune from civil liability for damages for their
judicial acts.
[26] JUDGES
Judicial or quasi-judicial immunity available to federal officers in suits
involving claims for damages extends to actions for declaratory, injunctive and
other equitable relief.
[27] JUDGES
Special master appointed by district court judge was entitled to absolute
quasi-judicial immunity for discretionary judicial acts.
[28] JUDGES
Once officer of court has been found to be within class protected by absolute
quasi-judicial immunity, that officer will not be deprived of immunity because
action he took was in error, was done maliciously or was in excess of his
authority; rather, he will be subject to liability only when he has acted in
clear absence of all jurisdiction.
[29] JUDGES
In analyzing litigant's due process claims against special master, test for
absolute immunity applied to special master's issuance of rulings and
adjudication of litigant's claims in allegedly biased manner, rather than to
special master's alleged extra-judicial communications themselves.
[30] JUDGES
Special master who was appointed to serve as special master in litigation was
clearly acting within his jurisdiction and thus the propriety of his
jurisdiction to adjudicate claims before him was unquestionable.
[31] JUDGES
Special master's execution of discretionary duties such as issuing rulings or
adjudicating claims, whether executed in biased manner or with appearance of
impropriety, were clearly judicial acts normally performed by a judge for
purposes of his entitlement to quasi-judicial immunity.
[32] JUDGES
Public policy underlying doctrine of absolute judicial immunity required
finding that special master was immune from liability resulting from execution
of his duties in litigation even if in violation of litigant's due
process rights. U.S.C.A. Const.Amends. 5, 14.
*876 William T. Drescher, Calabassas, CA, Kendrick L. Moxon, Helena K.
Kobrin, Bowles & Moxon, Hollywood, CA, for the plaintiff.
Terree A. Bowers, U.S. Atty., George H. Wu, AUSA, Asst. Chief, Civ. Div., Los
Angeles, CA, for the defendant.
MEMORANDUM OPINION
LEW, District Judge.
Defendant James G. Kolts in the above captioned action has moved to
dismiss Plaintiff's claims for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6). The matter was removed from the Court's law and motion calendar for
disposition based on the filed papers pursuant to Federal Rule of Civil
Procedure 78.
Having carefully considered all of the papers filed in support of and in
opposition to Defendant's motions, the Court finds that this case is properly
before this Court, and therefore Defendant's Motion to Dismiss for lack of
subject matter jurisdiction is DENIED. Defendant's Motion to Dismiss for
failure to state a claim is GRANTED WITH PREJUDICE.
I. BACKGROUND
Defendant James G. Kolts ("Defendant Kolts") was appointed by James M. Ideman,
United States District Court Judge for the Central District of California, to
serve as the special master in two consolidated cases, Religious Technology
Center, et al. v. Scott, et al., No. CV 85-0711 JMI (Bx), and Religious
Technology Center, et al. v. Wollersheim, et al., No. CV 85-7197 JMI(Bx) (the
"Scott-Wollersheim cases"). Plaintiff, Church of Scientology International
("Plaintiff"), which is also the party plaintiff in the Scott-Wollersheim
cases, contends that Defendant Kolts engaged in extrajudicial communications
with a Time magazine reporter, Richard Behar, as well as FBI and IRS agents
while serving as special master. In particular, Plaintiff alleges that
Defendant Kolts agreed to act as a confidential source to Mr. Behar at a time
when Mr. Behar was writing an article for Time magazine which Plaintiff claims
was "a viciously negative article." [FN1] Plaintiff infers from these contacts
that Defendant Kolts was biased, and therefore violated its constitutional
rights. Defendant Kolts does not recall any such contact with Mr. Behar and
apparently denies any extrajudicial contacts that might have prejudiced
Plaintiff's case.
FN1. That article is the subject of a federal defamation suit filed by
Plaintiff in New York. See Church of Scientology Int'l v. Time Warner,
Inc., et al., 806 F.Supp. 1157 (S.D.N.Y.1992).
After Plaintiff discovered these extrajudicial contacts it brought a motion
before Judge Ideman for recusal of Defendant Kolts based on the same alleged
extrajudicial contacts that are the subject of this suit. Judge Ideman denied
Plaintiff's motion holding that "it is patently obvious that the instant
recusal motion is done for the purpose of delay and harassment, and because the
motion is neither grounded in fact nor warranted by law, the Court HEREBY
DENIES plaintiffs' recusal motion as to Special Master Kolts." Religious
Technology Center et al., v. Scott, et al., No. CV 85-711 at 2 (C.D.Cal. Feb.
18, 1993) (order by Judge Ideman). Apparently, Judge Ideman recused himself as
the presiding judge over the Scott-Wollersheim cases on June 30, 1993.
Plaintiff subsequently filed the instant suit against Defendant Kolts alleging
a violation of its due process rights and violation of Canons 3A(4) and
3A(6) of the Code of Conduct for United States Judges (the "Judicial
Code"). [FN2] Plaintiff seeks a declaratory judgment *877 pursuant to 28
U.S.C. s 2201 stating that Defendant Kolts violated its Fifth Amendment due
process rights and violated the two provisions of the Judicial Code. Plaintiff
also seeks an injunction, as necessary and proper relief pursuant to 28
U.S.C. s 2202, ordering Defendant Kolts to disclose the content of all of his
extrajudicial communications regarding the Scott-Wollersheim cases or
Plaintiff, and that he disgorge any fees paid to him since he first engaged in
such activities. [FN3]
FN2. Canon 3A(4) provides as follows:
A judge should accord to every person who is legally interested in a
proceeding, or his lawyer, full right to be heard according to law, and,
except as authorized by law, neither initiate nor consider ex parte or
other communications concerning a pending or impending proceeding. A
judge, however, may obtain the advice of a disinterested expert on the law
applicable to a proceeding before him if he gives notice to the parties of
the person consulted and the substance of the advice, and affords the
parties reasonable opportunities to respond.
Code of Conduct for United States Judges Canon 3A(4) (1992).
Canon 3A(6) provides:
A judge should abstain from public comment about a pending or impending
proceeding in any court.... This subsection does not prohibit judges from
making public statements in the course of their official duties or from
explaining for public information the procedures of the court.
Code of Conduct for United States Judges Canon 3A(6) (1992).
FN3. Plaintiff claims that it has paid in excess of $200,000 to Defendant
Kolts in special master fees.
On May 3, 1993, Defendant Kolts moved to dismiss the instant case on the
grounds that the Court lacked subject matter jurisdiction and that Plaintiff
had failed to state a claim upon which relief could be granted. This Court
granted Defendant's motion on June 14, 1993 with twenty days leave to amend.
Plaintiff subsequently filed a First Amended Complaint on July 6, 1993.
Defendant Kolts then filed the current Motion to Dismiss Plaintiff's claims for
lack of subject matter jurisdiction and failure to state a claim pursuant to
Federal Rules of Civil Procedure 12(b)(1) & (6).
II. DISCUSSION
Defendant Kolts asserts that Plaintiff's amended Complaint should be dismissed
because this Court lacks subject matter jurisdiction and is barred by the
doctrine of sovereign immunity. In addition, Defendant Kolts moves for
dismissal on the grounds that Plaintiff cannot state a claim upon which relief
can be granted. In particular, Defendant Kolts contends that the Judicial Code
does not create a private cause of action, that Plaintiff has failed to allege
sufficient facts to state a claim for violation of its due process rights, that
Plaintiff cannot seek declaratory and injunctive relief under 28 U.S.C. s
2201, that Plaintiff's suit is merely a collateral attack on Judge Ideman's
denial of Plaintiff's motion to recuse, and finally, that Defendant Kolts is
immune from suit by the doctrine of absolute quasi-judicial immunity.
A. DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION.
Plaintiff bases its subject matter jurisdiction on 28 U.S.C. s 1331 for
violation of its due process rights guaranteed by the Fifth Amendment to the
United States Constitution as well as violation of Canons 3A(4) and 3A(6)
of the Code of Conduct for United States Judges. In addition, Plaintiff
asserts that this Court also has subject matter jurisdiction pursuant to 28
U.S.C. s 1361 for "declaratory relief sought in the nature of mandamus to
compel an officer of the United States to perform a duty owed to the
plaintiff." (First Am.Compl. P 2.) Defendant Kolts opposes each of these
assertions of jurisdiction and contends that Plaintiff's suit against Defendant
Kolts is actually a suit against the United States, and is therefore barred by
the doctrine of sovereign immunity.
1. Jurisdiction Pursuant to 28 U.S.C. s 1331.
[1] If a court lacks subject matter jurisdiction the court must dismiss the
case pursuant to Federal Rule of Civil Procedure 12(b)(1). Although
Defendant Kolts is the moving party, Plaintiff is the party seeking to invoke
this Court's jurisdiction. Accordingly, Plaintiff bears the burden of
establishing subject matter jurisdiction. See Stock West, Inc. v.
Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989) ("A federal court is
presumed to lack jurisdiction in a particular case unless the contrary
affirmatively appears.").
[2] Plaintiff asserts that this Court has jurisdiction over the instant case
pursuant to *878 28 U.S.C. s 1331. Because Plaintiff states a claim
arising under the Constitution (Plaintiff contends its Fifth Amendment due
process rights were violated), Plaintiff's complaint meets the requirement of
"arising under" the Constitution required by 28 U.S.C. s 1331. The United
States Supreme Court has held that a cause of action exists against federal
officers for direct constitutional torts claims. Larson v. Domestic &
Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949);
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); see also Daly-Murphy v.
Winston, 820 F.2d 1470, 1477 (9th Cir.1987). Thus, this Court has jurisdiction
under 28 U.S.C. s 1331. See The Presbyterian Church v. United States,
870 F.2d 518, 524 (9th Cir.1989) (holding that the court had jurisdiction over
a claim for declaratory relief because plaintiff alleged a violation of the
First and Fourth Amendments); Seltzer v. Foley, 502 F.Supp. 600, 601
(S.D.N.Y.1980) (holding that subject matter jurisdiction existed over a claim
for declaratory and injunctive relief because plaintiffs alleged that a
government official had acted unconstitutionally to deprive them of a liberty
interest and procedural due process).
[3] The parties spend an inordinate amount of time in their submitted
papers arguing whether the Code of Conduct for United States Judges constitutes
a "law" that would confer subject matter jurisdiction on the Court pursuant to
28 U.S.C. s 1331. Because Plaintiff alleges a violation of the Constitution
in its complaint, the parties' discussion seems academic. However, while the
Code may have the force of law, it does not seem to provide a grant of
jurisdiction. Cf. Port Drum Co. v. Umphrey, 852 F.2d 148, 149-50 (5th
Cir.1988) (holding that Rule 11 of Federal Rules of Civil Procedure is not a
federal law for purposes of Section 1331 jurisdiction, but is "instead a
regulator of a party's proceedings once that party is in federal court pursuant
to another, independent jurisdictional grant"); Johnson v. Thomas, 932 F.2d
747, 747 (8th Cir.1991) (per curiam) (holding that the Local Rules of the
United States District Court for the District of Minnesota addressing attorney
discipline do not confer subject matter jurisdiction on federal courts);
Taylor v. Diznoff, 633 F.Supp. 640, 642 (W.D.Pa.1986) (holding that the Code
of Professional Responsibility for lawyers does not confer subject matter
jurisdiction on the federal courts).
Finally, Defendant Kolts contends that the Declaratory Judgment Act, 28
U.S.C. ss 2201 and 2202, as well as an action in the nature of mandamus, 28
U.S.C. s 1361, do not confer jurisdiction upon the federal courts to hear a
claim for relief. This argument, however, is moot given that this Court holds
that subject matter jurisdiction already exists pursuant to 28 U.S.C. s 1331
by virtue of Plaintiff's due process claim.
2. The Doctrine of Sovereign Immunity.
[4][5][6] The United States, as a sovereign, is immune from suit except when
it consents to be sued. United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct.
1361, 1368, 108 L.Ed.2d 548, 561 (1990). Waivers of the Government's immunity
must be "unequivocally expressed" to be effective. United States v. Nordic
Village, Inc., 503 U.S. 30, ----, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181, 187
(1992). Moreover, the Government's consent to be sued must be " 'construed
strictly in favor of the sovereign' " and " 'not enlarge[d] ... beyond what the
language requires.' " United States Department of Energy v. Ohio, 503 U.S.
607, ----, 112 S.Ct. 1627, 1633, 118 L.Ed.2d 255, 266 (1992) (citations
omitted); Nordic Village, 503 U.S. at ----, 112 S.Ct. at 1015.
[7][8][9][10][11] The Supreme Court has long held that while sovereign
immunity prevents suits against the government as an entity, it does not, in
all instances, prevent suits against government officers in their individual
capacities. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 686-
87, 69 S.Ct. 1457, 1459-60, 93 L.Ed. 1628 (1949). However, the doctrine of
sovereign immunity cannot be avoided merely by naming officers and employees of
the United States as defendants. Id. at 687, 69 S.Ct. at 1460. When a
federal officer is sued in his or her representative capacity, the suit is
actually a suit against the United States and it is barred by sovereign
immunity. United States v. Yakima *879 Tribal Court, 806 F.2d 853, 858
(9th Cir.1986), cert. denied 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870
(1987). A suit is against the sovereign if the " 'judgment sought would expend
itself on the public treasury or domain, or interfere with the public
administration,' or if the effect of the judgment would be 'to restrain the
Government from acting, or to compel it to act.' " Id. (quoting
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101 n. 11, 104
S.Ct. 900, 908, n. 11, 79 L.Ed.2d 67, 79 n. 11 (1984)). However, sovereign
immunity clearly will not protect an officer from liability when actions of an
officer are ultra vires his designated authority. Dugan v. Rank, 372 U.S.
609, 621-22, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15, 24 (1963). Actions are ultra
vires when: (1) the official's act is beyond the limits of his statutorily
designated authority, (2) the official is acting pursuant to an
unconstitutional statute, or (3) the official himself commits an
unconstitutional act or deprives another of a federal right. Pena v.
Gardner, 976 F.2d 469, 474 (9th Cir.1992) (concurring opinion); see also
Dugan, 372 U.S. at 621-22, 83 S.Ct. at 1007. Courts generally hold that
suits that charge federal officials individually with unconstitutional acts are
not barred by sovereign immunity. Yakima Tribal Court, 806 F.2d at 859
(citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct.
1457, 93 L.Ed. 1628 (1949)). In these ultra vires situations, the officer's
actions can be made the basis of a suit for specific relief against the officer
as an individual. Id.; see also Larson, 337 U.S. at 687, 69 S.Ct. at
1460; Tashima v. Administrative Office of the United States Courts, 719
F.Supp. 881, 887 (C.D.Cal.1989), aff'd, 967 F.2d 1264 (9th Cir.1992).
a. Whether Defendant Kolts' Actions Were Ultra Vires His Authority.
[12] Because Plaintiff alleges in its complaint that Defendant Kolts
violated its right to due process of law, Plaintiff's claim falls within one of
the exceptions to the general rule protecting government officials from
liability under the doctrine of sovereign immunity. Because the government has
no power to confer on Defendant Kolts the authority to act unconstitutionally,
an allegation that Defendant Kolts acted in an unconstitutional manner, or
beyond his delegated powers, is a suit against Defendant Kolts in his personal
or individual capacity. Therefore, Plaintiff's suit for declaratory or
injunctive relief against Defendant Kolts is based on alleged unconstitutional
acts that are ultra vires his designated authority.
b. Whether the Relief Sought Which is Nominally Addressed to the Officer is
Actually Relief Against the Sovereign.
It is well settled that the federal government itself cannot be sued for
constitutional violations because of the doctrine of sovereign immunity.
Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457,
93 L.Ed. 1628 (1949). Thus, "a suit may fail, as one against the sovereign,
even if it is claimed that the officer being sued has acted unconstitutionally
or beyond his statutory powers, if the relief requested can not be granted by
merely ordering the cessation of the conduct complained of but will require
affirmative action by the sovereign or the disposition of unquestionably
sovereign property." Id. at 691 n. 11, 69 S.Ct. at 1462 n. 11. Thus, an
analysis of the relief sought by Plaintiff is also required.
[13] In this case, Defendant Kolts is an officer or official of the United
States. As a special master, Defendant Kolts is an officer of the court
appointed pursuant to Federal Rule of Civil Procedure 53(a) & (c). See
In re Joint Eastern and Southern Districts Asbestos Litigation, 737 F.Supp.
735, 742 (E. & S.D.N.Y.1990), aff'd in part and rev'd in part, 971 F.2d 831
(2d Cir.1992) (stating that special master is an officer of the court).
Plaintiff asserts that although Defendant Kolts is a government officer, the
requested remedies will not impinge upon the government's treasury or
administration because it seeks only: a declaration that the Defendant Kolts
acted extrajudicially, an order requiring the Defendant Kolts to disclose the
extent of his conversations about the case and its parties, and an order
requiring Defendant Kolts to disgorge the money that Plaintiff has already paid
to Defendant Kolts to serve *880 as a special master. Defendant Kolts,
however, argues that the relief requested by Plaintiff will interfere with the
public administration because an order forcing Defendant Kolts to submit to
discovery while presiding over the Scott-Wollersheim cases would clearly be
disruptive.
[14] The relief sought by Plaintiff would not impinge upon the government's
treasury because any special master fees ordered to be repaid would come
directly from Defendant Kolts' own pocket, not out of the government treasury.
In addition, ordering Defendant Kolts to disclose any discussions or contacts
he had regarding the Scott-Wollersheim cases or otherwise submitting to
discovery on the issue of the extrajudicial communications would likely be
uncomfortable for Defendant Kolts, but clearly would not be aimed at the
government or require the government to take any action on its own. While the
relief requested might cause delay or some disruption in the Scott-Wollersheim
cases, such a disruption does not reach a level where the Court must hold that
the relief is actually aimed at the sovereign.
There is scant support in the cases for carrying the effect-on-the-
government analysis as far as Defendant Kolts suggests in his moving papers.
While all suits against government officers will have some deterrent and
disruptive effect on the administration of government, the Supreme Court has
not held that such an inevitable disruption as exists in this case rises to a
level where sovereign immunity is implicated. Instead, the Court has followed
a more refined path of examining the relief sought against the officer and
determining whether that relief is actually against the government. The long
term effects of that relief have never been a part of the test. Thus, this
Court does not find that the relief sought against Defendant Kolts is actually
relief against the sovereign, and therefore the doctrine of sovereign immunity
does not bar plaintiff's suit against Defendant Kolts.
Defendant Kolts also contends that the Declaratory Judgment Act, 28 U.S.C. ss
2201 and 2202 as well as a mandamus action under 28 U.S.C. s 1361, do not
act as an express waiver of the government's sovereign immunity. Given that
this Court holds that the exception for allegations of a constitutional
violation apply in this case, the issue regarding Government waiver of
sovereign immunity is not relevant.
B. DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED.
Defendant Kolts asserts that this Court should dismiss this action because
Plaintiff has failed to state a claim upon which relief can be granted pursuant
to Federal Rule of Civil Procedure 12(b)(6). Defendant Kolts' contentions
include: that the Judicial Code does not provide a private right of action for
violations of its provisions; that even if the Judicial Code does create a
cause of action, the Complaint fails to allege a violation of the Judicial
Code; that Plaintiff cannot state a claim for violations of its due process
rights; that Plaintiff cannot establish a basis for declaratory relief,
injunctive relief, or the return of fees; that Plaintiff's suit is essentially
a collateral attack on Judge Ideman's recusal order; and that the present
action is barred by the doctrine of absolute quasi-judicial immunity.
[15] In a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court must presume all factual allegations of the complaint to be
true and draw all reasonable inferences in favor of the nonmoving party.
Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987); United
States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981). A court need
not, however, accept conclusory allegations or unreasonable inferences at face
value. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert.
denied 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). A complaint
should not be dismissed with prejudice for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957); see also NL Industries,
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).
*881 1. Whether the Code of Conduct for U.S. Judges Creates A Private
Cause of Action.
[16] The parties vigorously dispute whether the Code of Conduct for
United States Judges provides a private cause of action. The Judicial Code
clearly does not provide an express private right of action, and Plaintiff has
not cited a single case which directly holds that the Judicial Code creates a
private cause of action. Thus, this issue appears to be one of first
impression. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26
(1975), the Supreme Court stated a four-factor test to be applied in
ascertaining whether a private right of action is implied in a statute or
regulation when not expressly stated in the text. [FN4] The Court stated the
test as follows:
FN4. The Judicial Code is technically neither a "statute" nor an agency
"regulation," so the applicability of the Cort four-factor test in this
case is in doubt. However, given the lack of case law on the subject, this
Court holds that the Cort test is relevant in determining the issue now
before this Court.
First, is the plaintiff 'one of the class for whose especial benefit the
statute was enacted'.... Second, is there any indication of legislative
intent, explicit or implicit, either to create such a remedy or to deny
one? ... Third, is it consistent with the underlying purposes of the
legislative scheme to imply such a remedy for the plaintiff? ... And finally,
is the cause of action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to infer
a cause of action based solely on federal law?
Id. at 78, 95 S.Ct. at 2088.
As to the first part of the Cort test, clearly, Plaintiff is not a member
of the class for whose "especial" benefit the statute was enacted. The
Judicial Code was created to set standards for judicial conduct in order to
uphold "the integrity and independence of the judiciary." Code of Conduct for
United States Judges Canon 1 (1992). It was, in essence, created for use by
Judges in conforming their conduct to standards which would further the
administration of justice. It was not created to remedy injured third
parties. [FN5] Second, there is no clear legislative intent to create a
private right of action in the Judicial Code. Plaintiff's only evidence that
the Judicial Conference intended the Code to provide a private right of action
is the fact that the Judicial Conference adopted much of the wording in the ABA
Code of Conduct but did not include the ABA preamble, which states that the ABA
Code "did not purport to create any private right of action." See Code of
Judicial Conduct, 69 F.R.D. 273 (1973) as amended through (1975). However, if
the Judicial Conference participants had intended to so expand litigation
against judges and essentially restrict the long standing doctrine of absolute
immunity, surely they would have provided a clearer indication of that intent.
Third, it would be inconsistent with the underlying purpose of the legislative
scheme of the Judicial Code to imply a private right of action. In fact, to
imply a private cause of action is problematic. Such a rule would be extremely
disruptive to the orderly progression of cases through the court system.
Judges would be inhibited in their judicial actions and perhaps even in their
decision-making by the threat of suit for violations of the Judicial Codes,
many of which are only recommendations, not mandatory requirements. Thus,
allowing a private right of action would not further an independent judiciary.
FN5. The commentary to Canon 1 further supports this Court's
determination that Plaintiff is not a member of the class for which the
Judicial Code was created. The commentary states that "the Code is not
designed or intended as a basis for civil liability or criminal
prosecution. Finally, the purpose of the Code would be subverted if the
Code were invoked by lawyers for mere tactical advantage in a proceeding."
Code of Conduct for United States Judges Canon 1 commentary (1992).
A holding against the existence of a private cause of action is further
supported by analogizing the Judicial Code to the Federal Rules of Civil
Procedure. The Fifth Circuit has held that Rule 11 of the Federal Rules of
Civil Procedure does not create a separate, private right of action. Port
Drum Co. v. Umphrey, 852 F.2d 148, 149-50 (5th Cir.1988). While not
controlling, this Court is *882 persuaded by the holding in Port Drum.
Moreover, after reviewing the four-factor test in Cort, this Court finds
that the Judicial Code does not create a private right of action.
For the foregoing reasons, this Court hereby GRANTS WITH PREJUDICE Defendant's
Motion to Dismiss Plaintiff's First and Second Claims for Relief arising under
violations of the Judicial Code. Given that no private right of action exists
for violations of the Judicial Code, Plaintiff can state no facts which would
create a cause of action. Thus, without an underlying claim, Plaintiff has no
right to a declaratory judgment pursuant to 28 U.S.C. ss 2201 and 2202 as
it relates to the Judicial Code.
2. Whether Plaintiff's Complaint States A Claim for Violation of Its Due
Process Right to An Impartial Tribunal.
[17] No federal statute authorizes federal courts to hear suits or give
relief against federal officers who violate the Constitution of the United
States. However, the Supreme Court has long held that federal officers may be
sued for declaratory or injunctive relief to prevent future infringements of
federal laws. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337
U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The Supreme Court also extended
the right to sue for damages in the landmark decision of Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court held that it
would infer a cause of action for damages directly from certain constitutional
provisions. Thus, regardless of whether Plaintiff is suing for damages or
injunctive relief (and this issue is disputed by the parties), it is at least
possible to state a cause of action for violation of due process rights.
Plaintiff alleges in its complaint that Defendant Kolts denied its right to
due process of law guaranteed by the Fifth Amendment to the United States
Constitution. Plaintiff contends that Defendant Kolts spoke extrajudicially
with Mr. Behar and others regarding Plaintiff and the Scott-Wollersheim cases
while Defendant Kolts was acting as a special master. Plaintiff further
alleges that Mr. Behar was biased and held "habitually negative and prejudicial
attitudes" toward Plaintiff. (First Am.Compl. P 30.) Plaintiff infers from
these alleged contacts that because Defendant Kolts "exposed" himself to such
biased individuals, Defendant Kolts also must have been biased when issuing his
rulings, and therefore has deprived Plaintiff of its constitutional right to "a
fair trial in a fair tribunal ... [and the] guarantee that justice must satisfy
the appearance of justice...." (First Am.Compl. P 31.)
Defendant Kolts contends that Plaintiff has failed to allege sufficient
facts to state a claim for violation of its constitutional right to due process
of law. The first amended complaint merely contains allegations that Defendant
Kolts may have been contacted by Mr. Behar and may have, "in a most casual
way," discussed the Scott-Wollersheim cases. (First Am.Compl. P 12.)
Plaintiff also avers that Defendant Kolts may have been approached by agents of
the IRS and FBI about the cases. Plaintiff does not allege that Defendant
Kolts discussed the merits of its case with any of these alleged contacts nor
that Defendant Kolts expressed his opinions about either of the parties in the
cases before him. The complaint infers that Defendant Kolts was himself biased
against Plaintiff at the time he issued rulings on Plaintiff's cases. [FN6]
FN6. Either Plaintiff expects this Court to infer that Defendant Kolts was
biased simply because he spoke with someone that may have been biased, or
Plaintiff is alleging that its due process rights were violated simply by
the appearance of impropriety, whether or not Defendant Kolts was in fact
biased.
In essence, Plaintiff's contention in this case is that any extrajudicial
communication, irrespective of content, is sufficient to allege a violation of
due process. However, if a judge or special master merely responded
affirmatively to a reporter's inquiry as to whether a particular case was still
pending or told a government agent what stage the litigation happened to be at,
it would be unreasonable to assert that the judge had violated a party's due
process rights. In fact, it must be conceded that a judicial officer has the
*883 authority to explain to outsiders the procedures of the court. Based
on the complaint, it appears that Plaintiff does not know what was said to Mr.
Behar and the government agents, assuming that these contacts did indeed
occur. This Court is very reluctant to allow Plaintiff to force Defendant
Kolts to defend against an inference of prejudice wholly unsupported by factual
allegations. [FN7]
FN7. Surely such averments, wholly unsupported by evidence, could not
survive a motion for summary judgment.
However, the Supreme Court has held that while judicial fairness obviously
requires an absence of actual bias in the adjudication of cases, the Court has
also noted that "our system of law has always endeavored to prevent even the
probability of unfairness." In re Murchison, 349 U.S. 133, 136, 75 S.Ct.
623, 625, 99 L.Ed. 942 (1955) (emphasis added). The Court has further stated
that in order for the judicial system "to perform its high function in the best
way, 'justice must satisfy the appearance of justice.' " Id. (citations
omitted) (emphasis added). While this Court does not interpret this expansive
reading of the due process clause to mean that any appearance of impropriety is
sufficient to violate the due process clause, for purposes of a 12(b)(6) motion
to dismiss, an allegation of the appearance of impropriety is sufficient to
survive the limited pleading requirements of Federal Rule of Civil Procedure
8.
3. Whether Plaintiff's Due Process Claim is Proper for Declaratory Relief
Pursuant to 28 U.S.C. s 2201.
[18] Assuming that Plaintiff has stated sufficient facts to allege a
violation of its due process rights, Defendant Kolts also contends that
Plaintiff's due process claim should be dismissed because it cannot be stated
as a claim for declaratory relief under 28 U.S.C. s 2201. Section 2201
states that
[i]n a case of actual controversy within its jurisdiction ... any court
of the United States ... may declare the rights and other legal relations of
any interested party seeking such declaration, whether or not further relief is
or could be sought. Any such declaration shall have the force and effect of a
final judgment or decree and shall be reviewable as such.
28 U.S.C. s 2201.
The Supreme Court has held that Section 2201 is "an enabling Act, which
confers discretion on the courts rather than an absolute right upon the
litigant." Public Service Commission of Utah v. Wycoff Co., Inc., 344 U.S.
237, 241, 73 S.Ct. 236, 239, 97 L.Ed. 291 (1952); see also Green v.
Mansour, 474 U.S. 64, 72, 106 S.Ct. 423, 428, 88 L.Ed.2d 371, 379 (1985);
Alabama State Federal of Labor v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384,
1390, 89 L.Ed. 1725 (1945); Manley, Bennett, McDonald & Co. v. St. Paul
Fire & Marine Insurance Co., 791 F.2d 460, 462 (6th Cir.1986). The propriety
of issuing a declaratory judgment may depend upon equitable considerations and
should be " 'informed by the teachings and experience concerning the functions
and extent of federal judicial power.' " Green, 474 U.S. at 72, 106 S.Ct.
at 428 (citing Public Service, 344 U.S. at 243, 73 S.Ct. at 240).
[19] If this Court were to issue a declaratory judgment and order the
requested injunctive relief, it could greatly impede the orderly administration
of justice. The Plaintiff has already attempted to recuse Defendant Kolts from
his position as special master in the Scott-Wollersheim cases. Yet, in effect
what Plaintiff is trying to accomplish in this suit for declaratory relief is
the same result it failed to obtain in its motion for recusal. Although
Plaintiff in this suit is not presently asking for Defendant Kolts' recusal, it
has requested relief that, if granted, would have the result of forcing
Defendant Kolts to recuse himself. Indeed, allowing a party who has been
unsuccessful in a recusal motion to simply file a civil suit against that same
judge or special master would be entirely disruptive to the judicial process.
It would invariably create an adversarial relationship between the party to the
underlying litigation and the judge or special master appointed to be an
unbiased arbiter. Such a civil suit would require the judge or special master
to recuse himself because of that *884 adversarial relationship. Moreover,
Plaintiff is requesting that all fees paid to Defendant Kolts be returned to
Plaintiff. Such a ruling would effectively prevent Defendant Kolts from
serving as a special master because he would no longer be paid for his
services. In effect, Plaintiff's requested ruling would do what it could not
do in its recusal motion before Judge Ideman.
[20] Additionally, Plaintiff's request for a declaratory judgment stating
that Plaintiff's due process rights have been violated does not appear to
encompass a proper situation for a declaratory judgment. Plaintiff does not
request an injunction to prohibit future violations of its due process rights;
nor does this Court believe such an injunction would be proper. As the Supreme
Court noted in Green v. Mansour, considerations of the function and extent
of federal judicial power should be a factor in the Court's exercise of
discretion when deciding whether a declaratory judgment is proper. 474 U.S.
64, 72-73, 106 S.Ct. 423, 428, 88 L.Ed.2d 371 (1985). Even if this Court
issued a declaratory judgment stating that Plaintiff's due process rights were
violated, such a ruling probably would not settle the controversy. Plaintiff
would still have to seek a recusal motion before the presiding district court
judge in the Scott-Wollersheim cases in order to prevent further violation of
its due process rights. Moreover, Judge Ideman previously denied just such a
motion after considering the same issues of extrajudicial communication raised
by Plaintiff in this lawsuit.
[21][22] In some circumstances, Plaintiff's request for an injunctive
order as "further necessary or proper relief" pursuant to 28 U.S.C. s 2202
would be an appropriate remedy. The Supreme Court noted in Green v. Mansour
that declaratory judgments are intended to remedy a "continuing violation of
federal law," and therefore would necessitate an occasion to issue an
injunction. 474 U.S. at 73, 106 S.Ct. at 428. However, injunctive relief
is awarded at the discretion of the district court and can only be given if
there is a showing of inadequate remedies at law and of serious risk of
irreparable harm. Pulliam v. Allen, 466 U.S. 522, 537, 104 S.Ct. 1970,
1978, 80 L.Ed.2d 565, 576 (1984). It appears that the main purpose of
Plaintiff's lawsuit for declaratory judgment is to either rectify a past wrong
(violation of its due process rights), or to effectively remove a judicial
officer, both possibilities having ample remedies at law. If Plaintiff's
purpose is the former, then a direct action for damages, by requesting
repayment of over $200,000 in special master fees and for the costs of suit, is
the better method of resolution. If Plaintiff's purpose is the latter, then
Plaintiff could follow established procedures for rehearing of specific motions
or removal of a judicial officer. Where litigation is pending before a federal
district court and the party believes that the judge (or as here the special
master) has taken improper and prejudicial action, several avenues for relief
are available: (1) a party can ask the judge to reconsider his ruling (Local
Rule 7.16); (2) a party can move to recuse the judge (28 U.S.C. ss 144,
455); (3) a party can seek mandamus relief from a Court of Appeals (28
U.S.C. s 1651); [FN8] or (4) a party can seek to certify the issue and take an
immediate appeal (28 U.S.C. s 1292).
FN8. Although Plaintiff's complaint cites 28 U.S.C. s 1361,
jurisdiction for writ of mandamus, as a basis for subject matter
jurisdiction, it is not clear whether Plaintiff brings its action for a
declaratory judgment and other relief in the form of a petition for a writ
of mandamus. This Court does not decide the question of whether such a
writ is appropriately brought before this Court because Plaintiff does not
assert this issue anywhere else in its complaint or submitted papers.
Consequently, this Court will not assume on the Plaintiff's behalf that its
complaint is a petition for writ of mandamus. See 28 U.S.C. s 1651;
Fed.R.App.P. 21. However, this Court will refer Plaintiff to the Ninth
Circuit's ruling in Mullis v. United States Bankruptcy Court, Dist. of
Nevada, 828 F.2d 1385 (9th Cir.1987), where the court held that "[a]
district court lacks authority to issue a writ of mandamus to another
district court." Id. at 1393 (citing Lewis v. Green, 629 F.Supp.
546, 553 (D.D.C.1986)).
[23] Even if Plaintiff's purpose is only to obtain a ruling that Defendant
Kolts has violated its due process rights, such a ruling would in effect be a
collateral attack on Judge Ideman's ruling that recusal was not proper, and
therefore such a claim would not *885 be properly before this Court. [FN9]
The Ninth Circuit has held that a collateral attack disguised as a suit for
declaratory judgment of due process rights is improper. In Mullis v. United
States Bankruptcy Court, District of Nevada, 828 F.2d 1385 (9th Cir.1987), the
Ninth Circuit held that
FN9. Although not explicitly asserted by Defendant Kolts, the doctrine of
collateral estoppel might bar this Court's adjudication of this suit, and
therefore would be an alternative ground for granting Defendant Kolts'
current Motion to Dismiss. Collateral estoppel or issue preclusion "bars
the relitigation of issues actually adjudicated in previous litigation
between the same parties." Clark v. Bear Stearns & Co., Inc., 966 F.2d
1318, 1320 (9th Cir.1992) (citing 18 C. Wright, A. Miller & E. Cooper,
Federal Practice and Procedure s 4402 (1981)); see also Montana v.
United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210
(1979). The absence of a due process violation can be inferred from Judge
Ideman's denial of Plaintiff's motion for recusal. Judge Ideman would not
have denied the recusal motion had he found that Defendant Kolts violated
Plaintiff's due process right to an impartial tribunal. Moreover, courts
have clearly held that a denial of a motion to recuse necessarily entails a
holding that the movant's due process rights were not violated. United
States v. Int'l Business Machs. Corp. (In re Int'l Business Machs. Corp.),
618 F.2d 923, 932 n. 11 (2d Cir.1980) (" [I]t would be anomalous to hold
that a claim under the [recusal] statutes insufficient on its merits could
nevertheless satisfy the constitutional standard." ); United States v.
Ahmed, 788 F.Supp. 196, 205 (S.D.N.Y.) (holding that "[a] rejection of
defendant's claims under [recusal] sections 144 and 455 'a fortiori
defeats his due process allegations.' "), aff'd, 980 F.2d 161 (2d
Cir.1992). The parties do not state whether a due process issue was
explicitly raised in the recusal motion before Judge Ideman, but it is
clear from the parties' submitted papers that the same claims of
extrajudicial contacts which are the basis of this due process cause of
action were raised in the recusal motion.
[b]y styling his or her complaint as a Bivens injunctive action, a federal
court litigant could circumvent the limitations on direct appeal, including
interlocutory appeal, and for extraordinary writs. To allow a district court
to grant injunctive relief ... would be to permit, in effect, a 'horizontal
appeal' from one district court to another or even a 'reverse review' of a
ruling of the court of appeals by a district court.
Id. at 1392-93.
The court added that "[s]uch collateral attacks on the judgments, orders,
decrees or decisions of federal courts are improper." Id. at 1393 (citing
Brown v. Baden, 815 F.2d 575, 576-77 (9th Cir.1987) (other citations
omitted)).
Thus, this Court exercises its discretion by denying Plaintiff's due
process claim for declaratory judgment pursuant to 28 U.S.C. s 2201.
Moreover, the Ninth Circuit's holding in Mullis supports Defendant Kolts'
contention that it would also be improper for this Court to hear a claim for
damages or injunctive relief if Plaintiff were allowed to amend its Complaint.
4. Whether Plaintiff's Claims Are Barred by the Doctrine of Absolute Quasi-
Judicial Immunity.
[24] Defendant Kolts also contends that this case must be dismissed because
he is immune from suit under the doctrine of absolute quasi-judicial immunity.
Absolute immunity may properly be raised in support of a motion to dismiss for
failure to state a claim. See Imbler v. Pachtman, 424 U.S. 409, 416, 96
S.Ct. 984, 988, 47 L.Ed.2d 128, 135 (1976); Mullis v. United States
Bankruptcy Court, District of Nevada, 828 F.2d 1385, 1387 n. 6 (1987).
[25][26] Judges are absolutely immune from civil liability for damages for
their judicial acts. Mireles v. Waco, 502 U.S. 9, ----, 112 S.Ct. 286, 287,
116 L.Ed.2d 9, 13 (1991); Mullis, 828 F.2d at 1388. In addition, the
judicial or quasi-judicial immunity available to federal officers in suits
involving claims for damages, extends to actions for declaratory, injunctive,
and other equitable relief. Mullis, 828 F.2d at 1394. [FN10]
FN10. It is, however, established that judicial immunity does not bar
declaratory or injunctive relief in actions against state judges under
42 U.S.C. s 1983. Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S.Ct.
1970, 1980-81, 80 L.Ed.2d 565 (1984); Ashelman v. Pope, 793 F.2d 1072,
1075 (9th Cir.1986) (en banc). While Plaintiff argues that Mullis was
wrongly decided in light of policy and dicta found in the Pulliam case,
this Court is obligated to follow the Ninth Circuit's clear statement of
the law on the specific issue of absolute immunity for federal judicial
officers in non-Section 1983 claims.
*886 [27] In a case involving parties related to this suit, Atkinson-
Baker & Assoc., Inc. v. Kolts, 7 F.3d 1452, 1454-55 (9th Cir.1993), the Ninth
Circuit held that absolute quasi-judicial immunity extends to special masters
appointed by district court judges. The court reasoned that, " 'When judicial
immunity is extended to officials other than judges, it is because their
judgments are functionally comparable to those of judges--that is, because they
too, exercise a discretionary judgment as part of their function.' " Id. at
1454 (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, ----, 113
S.Ct. 2167, 2171, 124 L.Ed.2d 391, 399 (1993) (citations and quotations
omitted)). Such a conclusion is warranted by analogous court rulings which
have extended absolute immunity to bankruptcy trustees, [FN11] court-appointed
guardians ad litem, [FN12] court-appointed commissioners, [FN13] court-
appointed receivers, [FN14] and court-appointed conservators of estates.
[FN15] Furthermore, courts generally extend absolute quasi-judicial immunity
to nonjudicial officials whose official duties have an integral relationship
with the judicial process. See e.g., Imbler v. Pachtman, 424 U.S. 409, 96
S.Ct. 984, 47 L.Ed.2d 128 (1976); Ashbrook v. Hoffman, 617 F.2d 474, 476
(7th Cir.1980). Therefore, this Court holds that Defendant Kolts as a special
master appointed by Judge Ideman has absolute quasi-judicial immunity for his
discretionary judicial acts.
FN11. Mullis, 828 F.2d at 1390; Lonneker Farms, Inc. v. Klobucher,
804 F.2d 1096, 1097 (9th Cir.1986).
FN12. Ward v. San Diego County Dept. of Soc. Servs., 691 F.Supp. 238,
241 (S.D.Cal.1988).
FN13. Ashbrook v. Hoffman, 617 F.2d 474, 476-77 (7th Cir.1980).
FN14. Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d
1, 2-3 (1st Cir.1976).
FN15. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir.1978) (per
curiam), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311
(1979).
[28] Once an officer of the court has been found to be within the class
protected by absolute quasi-judicial immunity, that officer "will not be
deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to
liability only when he has acted in the 'clear absence of all
jurisdiction.' " Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099,
1104-05, 55 L.Ed.2d 331, 339 (1978) (emphasis added). Moreover, the "scope of
the judge's jurisdiction must be construed broadly where the issue is the
immunity of the judge." Id., 435 U.S. at 356, 98 S.Ct. at 1104-05.
However, judicial officers will not be protected by absolute immunity "for
nonjudicial actions, i.e., actions not taken in the judge's judicial
capacity." Mireles v. Waco, 502 U.S. 9, ----, 112 S.Ct. 286, 288, 116
L.Ed.2d 9 (1991). The Supreme Court has emphasized that courts are to examine
the " 'nature' and 'function' of the act, not the 'act itself.' " Id.
(quoting Stump, 435 U.S. at 362, 98 S.Ct. at 1107). In determining whether
an act is judicial in nature, courts must ask whether the act is a "function
normally performed by a judge, [and] whether [the party] dealt with the judge
in his judicial capacity." Stump, 435 U.S. at 362, 98 S.Ct. at 1107.
a. Whether The "Act" to Be Applied to the Immunity Test is the Extrajudicial
Contact or the Adjudication of Claims.
[29] This Court must decide whether the Supreme Court's test for
absolute immunity should be applied to Defendant Kolts' alleged extrajudicial
communications, or the issuance of rulings and adjudication of Plaintiff's
claims in an allegedly biased manner. In other words, because Plaintiff's only
remaining claim is for violation of its due process rights to an unbiased
tribunal, would Plaintiff's due process rights be violated when Defendant Kolts
issued rulings and adjudicated Plaintiff's claims in an allegedly biased manner
and with the appearance of impropriety, or would due process be violated by the
alleged extrajudicial contacts themselves? The distinction is critical to the
outcome of the immunity test.
The Ninth Circuit has tangentially addressed the issue of which "act" to use
in applying the immunity test. In Ashelman v. Pope, 793 F.2d 1072 (9th
Cir.1986), the court *887 held that an act of conspiracy by a judge, while
clearly improper, did not pierce the judge's immunity because the judge's
ultimate act of adjudicating claims was clearly a judicial act. The
Ashelman court stated that "[a]s long as the judge's ultimate acts are
judicial actions taken within the court's subject matter jurisdiction, immunity
applies." Id. at 1078 (emphasis added). In issuing its ruling, the court
specifically overturned previous Ninth Circuit opinions which had held that
judicial acts of conspiracy or bribery, which were the motives behind issuing
biased rulings, were not subject to immunity. Id. at 1078 (citing Rankin
v. Howard, 633 F.2d 844 (9th Cir.1980); Beard v. Udall, 648 F.2d 1264 (9th
Cir.1981)). Thus, the court made clear that judicial immunity "from civil
liability should not be 'affected by the motives with which their judicial acts
are performed' ..., intent should play no role in the immunity analysis."
Id. at 1078 (quoting Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct.
496, 500, 88 L.Ed.2d 507, 513 (1985)).
Plaintiff spends an inordinate amount of time in its moving papers arguing
that Defendant Kolts' extrajudicial contacts violated its due process rights.
However, these contacts in and of themselves cannot violate Plaintiff's due
process rights. Indeed, these contacts cannot and do not cause an injury to
Plaintiff. Plaintiff's due process rights can only be violated if Defendant
Kolts issues rulings or adjudicates Plaintiff's claims in a biased manner or
with the appearance of impropriety. Thus, the ultimate act of adjudicating in
a biased manner, not the act of talking to a reporter or government agents,
causes the due process violation. The acts of talking with Mr. Behar and the
government agents are simply evidence of motive and evidence to support a
contention of bias or an appearance of impropriety during the adjudication of
claims, but they are not the due process violation itself. Consequently, the
contacts themselves do not create a cause of action. Only when these contacts
are viewed in relation to Defendant Kolts' position as a special master can
they give rise to a constitutional claim for violation of due process rights.
Thus, Plaintiff's attempt to apply the Supreme Court's immunity test
(i.e., whether the judge acted within his jurisdiction and whether the act was
of a type normally performed by a judicial officer) to the acts of speaking
with Mr. Behar and the government agents is misplaced. Plaintiff has not and
can not allege a claim for having extrajudicial contacts. [FN16] Plaintiff has
only successfully stated a claim for violation of its due process rights.
Thus, this Court will analyze the absolute immunity issue as it applies to
Plaintiff's due process claim which is before this Court.
FN16. Indeed, this Court has already noted Plaintiff's inability to state
a claim for violation of the Judicial Code.
b. Whether Defendant Kolts Acted in the Clear Absence of All Jurisdiction.
[30] Assuming for purposes of a motion to dismiss that Defendant Kolts, in
his capacity as special master, did in fact issue rulings in a biased manner or
with the appearance of impropriety resulting from extrajudicial contacts, the
ensuing violation of due process would not occur in the clear absence of
jurisdiction. In his capacity as a special master presiding over Plaintiff's
case, Defendant Kolts clearly is acting within his "jurisdiction" in that he
was appointed to serve as the special master in the Scott-Wollersheim cases by
order of Judge Ideman. Thus, the propriety of Defendant Kolts' jurisdiction to
adjudicate the claims before him is unquestionable.
Whether Defendant Kolts was biased when adjudicating Plaintiff's case or
whether his actions gave the appearance of impropriety in the execution of his
duties as special master is not the deciding factor. The issue is whether
Defendant Kolts had jurisdiction over the action of adjudicating claims in
which Plaintiff's due process rights may or may not have been violated.
Clearly he did. Therefore, Defendant Kolts did not act in the clear absence of
jurisdiction.
*888 c. Whether the Defendant's Alleged Acts Were of the Type Normally
Performed by A Judge.
[31] The Supreme Court has stated that the test for determining whether an
act by a judge is "judicial" in nature is to determine whether "it is a
function normally performed by a judge, and to the expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity." Stump v.
Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed.2d 331 (1978).
Clearly the acts of making rulings, holding hearings, and adjudicating claims
are acts well within the purview of a special master. Indeed, the execution of
these acts is the very purpose for the creation of a special master. Moreover,
Plaintiff's alleged due process violation arises from the Plaintiff's dealings
with Defendant Kolts in his position as a special master. In other words, it
is only because of Defendant Kolts' actions in his judicial capacity in
relation to Plaintiff that due process rights are at stake.
Even if Defendant Kolts was biased in the adjudication of claims or issued
rulings with the appearance of impropriety, such error is not sufficient to
remove Defendant Kolts' actions from functions normally performed by a special
master. The Supreme Court has made clear that a judicial officer's rulings or
actions "will not be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority...." Stump,
435 U.S. at 356-57, 98 S.Ct. at 1104-05. In fact, the Supreme Court has upheld
absolute immunity in cases involving some of the most egregious violations of
constitutional rights. See e.g., Mireles v. Waco, 502 U.S. 9, 112 S.Ct.
286, 116 L.Ed.2d 9 (1991) (holding a judge absolutely immune after ordering
police officers to "forcibly and with excessive force seize and bring [an
attorney] into his courtroom" for morning session); Stump, 435 U.S. 349, 98
S.Ct. 1099, 55 L.Ed.2d 331 (1978) (holding a judge absolutely immune after he
ordered a fifteen-year-old girl sterilized at the request of her mother).
Thus, Defendant Kolts' execution of discretionary duties such as
issuing rulings or adjudicating claims, whether executed in a biased manner or
with an appearance of impropriety, are clearly judicial acts normally performed
by a judge.
d. Whether Policy Supports A Finding of Absolute Immunity.
[32] The public policy underlying the doctrine of absolute immunity requires
a finding that Defendant Kolts is immune from liability resulting from the
execution of his duties even if in violation of Plaintiff's due process
rights. Despite the unfairness to litigants that sometimes may result, the
doctrine of judicial immunity is in the best interests of "the proper
administration of justice for it allows a judicial officer ... to be free to
act upon his own convictions, without apprehension of personal consequences to
himself." Stump, 435 U.S. at 363, 98 S.Ct. at 1108. Thus, judicial
immunity protects "judicial independence by insulating judges from vexatious
actions prosecuted by disgruntled litigants." Forrester v. White, 484 U.S.
219, 225, 108 S.Ct. 538, 543, 98 L.Ed.2d 555, 564 (1988). Moreover, absolute
immunity
'is not for the protection or benefit of a malicious or corrupt judge, but
for the 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.' [citations omitted] ... 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. Imposing such a burden on judges
would contribute not to principled and fearless decisionmaking but to
intimidation.
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288,
294 (1967) (quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoting
Bradley v. Fisher, 13 Wall. 335, 350, 20 L.Ed. 646 (1872)).
Enabling litigants to sue judges by alleging, for whatever reason, that the
judge was biased against them would clearly have a detrimental effect on the
administration of justice. Harassment by unfounded litigation would cause
deflection of a judge's energies from his public duties. In addition, it could
*889 shade his decisions instead of allowing him to exercise independence of
judgment required by his public trust. Here, Defendant Kolts is still the
special master over Plaintiff's case, yet he is being sued by one of the very
parties toward whom he is supposed to remain unbiased. If litigants were
permitted to sue judges for issuing rulings that appear biased, independent
judicial decision-making would certainly be in jeopardy. Whether Plaintiff
should have an opportunity to redress a wrong is not at issue. The broader
public interest would be at stake if this suit was permitted to go forward
because it would prevent vigorous and fearless performance of a judicial
officer's duties that are essential to the proper functioning of the judicial
system.
For the forgoing reasons, this Court finds Defendant Kolts to be absolutely
immune from Plaintiff's THIRD claim for violation of its due process rights.
III. CONCLUSION
The Court finds that Plaintiff's claim for violation of its due process
rights confers on this Court subject matter jurisdiction to hear this case. In
addition, sovereign immunity does not bar this suit against Defendant Kolts.
Plaintiff cannot, however, state a claim for violation of the Code of Conduct
for United States Judges. While Plaintiff alleges sufficient facts to state a
claim for violation of its due process rights, this Court exercises its
discretion to deny Plaintiff's request for a declaratory judgment. In
addition, the Court finds that this suit is simply a collateral attack on Judge
Ideman's ruling denying Plaintiff's motion to recuse Defendant Kolts. Finally,
the Court holds that Defendant Kolts has absolute immunity against Plaintiff's
due process claim.
For the foregoing reasons, the Court DENIES Defendant's motion to dismiss for
lack of subject matter jurisdiction and GRANTS WITH PREJUDICE Defendant's
motion to dismiss for failure to state a claim.
IT IS SO ORDERED.