You can't sue the judge

Every plaintiff's lawyer from time to time fields a potential case intake that seeks to sue the judge. We tell the potential clients that you can't sue the judge. They say that you can because the judge did something outside his jurisdiction. Then you politely tell this individual that you can't take the case. It's not often that this issue reaches the Court of Appeals, but it did in this case.

The case is Deem v. DiMella-Deem, issued on October 30. This case arose from a divorce proceeding. The plaintiff is a lawyer, and his wife is the defendant, along with a family court judge and their marriage counselor. The family court entered an order temporarily preventing Deem from having contact with his children. The lawsuit claims the defendants conspired to violate his intimate association with his children. The lawsuit was dismissed, and the Court of Appeals affirms that dismissal.

Any judge who acts in her judicial capacity cannot be sued over her decisions. That's the rule in Mireles v. Waco, 502 U.S. 9 (1991). When Deem filed this lawsuit against the family court judge, the judge recused herself, adjourned an upcoming hearing to a date two months out, and transferred the case to a different judge. The family court judge also extended the temporary order of protection until the next court date. At that point, Deem amended the complaint in alleging that the TRO extension was outside the family court's judicial capacity.

I guess the argument was that after the family court judge recused herself, she acted outside her judicial authority in extending the TRO. That's a creative argument, but the Court of Appeals (Sullivan, Winter and Pooler) is not buying it. "even assuming that Judge Gordon-Oliver erred in extending the temporary protection order against Deem shortly after recusing herself, any such error falls far short of an act 'taken in complete absence of all jurisdiction.'" We got a Fifth Circuit case that applied judicial immunity for a state court judge who set an execution date after recusing himself. That policy now applies in the Second Circuit.