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As long as he conforms to the framework of the license, then he is acting with the authority of the State. I don't allege, however, that the individual who goes beyond it involves the State.

Senator ERVIN. The specific question involved is illustrated by the case where they tried to get the court to hold that the attorney for the defendant who denied a man a civil right under the civil rights statute was acting for the State, because he was licensed by the State and was an officer of the court. And the court held that the actions of the attorney for the defense, although licensed by the State, and although an officer of the court, did not represent State action, even though he was acting in the courthouse.

So, I think that answers your argument. I would like to insert two cases in the record at this time, Givens v. Moll (177 F. 2d 765), and Kenney v. Fox (232 F. 2d 288).

Senator Dodd. I am sorry you think so.
Anyway, thank you.
Mr. Chairman, I wanted to get this on the record.
Thank

you,

Senator. (The cases referred to follow :)

GIVENS V. MOLL ET AL.

No. 12520.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1949. Rehearing Denied Jan. 12, 1950. Charles A. Givens sued Herman H. Moll and others to set aside a judgment of a state court, for an accounting, and other relief.

The United States District Court for the Southern District of Alabama, John McDuffie, J., dismissed suit for lack of jurisdiction, and plaintiff appealed.

The Court of Appeals, Hutcheson, Circuit Judge, affirmed judgment, holding that complaint showed lack of diversity of citizenship, and failed to allege a federal question. 1. Courts Om 308, 317

Federal district court properly dismissed suit for want of jurisdiction on ground of diversity of citizenship where complaint did not claim or suggest requisite diversity, and named a co-citizen of state with plaintiff as a "real respondent”, and named as nominal parties defendant, but in fact real parties plaintiff, plaintiff's co-claimants, who were co-citizens of state with those named by plaintiff as real defendants. 2. Courts en 282.2(1)

Charge that defendants by obtaining judgments in state court thus used state power to deprive plaintiff and co-claimants of property without due process of law did not confer original jurisdiction upon federal district court of suit to set aside a judgment of state court, and for other relief, on ground that a federal question was involved. U.S.C.A. Const. Amend. 14. 3. Courts On 282.2 (25)

The claim that a judgment of state court is erroneous raises no federal question on which jurisdiction of federal courts can be based. 4. Courts uw 282.2(1)

Charged acts of a lawyer were not acts of a state, so that suit against lawyer for wrongs lawyer allegedly did depriving plaintiff and co-claimants of property without due process of law did not present federal question conferring original jurisdiction upon federal district court. U.S.C.A. Const. Amend. 14.

J. Terry Reynolds, Jr., Mobile, Ala., Henry C. Vosbein, New Orleans, La., for appellant.

Hugh M. Caffey, Leon G. Brooks, Brewton, Ala., for appellees.
Before HUTCHESON, McCORD, and RUSSELL, Circuit Judges.
HUTCHESON, Circuit Judge.

Appealing from a judgment dismissing his suit for want of jurisdiction, appellant, a citizen of Florida, is here insisting that his complaint showed both the requisite diversity of citizenship and the existence of a federal question, and the judgment must be reversed.

[1] We cannot at all agree. Nowhere in the course of the lengthy complaint is the requisite diversity claimed or even suggested. On the contrary, the complaint, in naming as a "real respondent” W. E. Duggan, a co-citizen with plaintiff of Florida, on its face deprives the suit of the requisite diversity. In addition, it names as nominal parties defendant? but in fact real parties plaintiff, his brothers and sisters, co-heirs with him and co-claimants in the cause of action, all of whom are co-citizens of Alabama with Caffey et al., named by plaintiff as the real defendants.

When it comes to the federal question ground of jurisdiction, that the suit arises under the Constitution and laws of the United States, while it is clear that plaintiff's reliance for jurisdiction is on that ground, it is equally clear that the complaint signally fails to present such a ground. The only reference in the long complaint, with its mass of attached exhibits, to either the Federal Constitution or the statutes is the reference in paragraph 1, on page 3 of the transcript: 6* * * depriving your complainant of his lawful inheritance without due process of law and in violation of the Fourteenth Amendment of the Constitution of the United States, to-wit: 'Nor shall any State deprive any person of life, liberty or property, without due process of law; not deny any person within its jurisdiction the equal protection of the Laws."

Assuming, without deciding, that this generalization, if supported by pleaded facts, would be a sufficient claim of federal jurisdiction on the ground of a federal question, we find no allegation of fact whatever which shows or tends to show the existence of a federal question in this case.

Stripped of the involvements, the intricacies, the particularities, the redundancies with which the complaint abounds, what it comes down at last to is a claim: that Caffey, as solicitor and advisor of the Givens Estate, aided and abetted by other defendants named and unnamed, by and with the aid of court proceedings and court judgments in Alabama,3 conceived, engineered, and carried out a scheme to defraud the James Alexander Givens Estate and plaintiff and his co-heirs, the owners thereof, and that as a result of the taking and foreclosure of mortgages and other acts and proceedings in and out of court, the defendants have wronged plaintiff and his co-heirs.

The prayer is for an accounting and for an injunction against waste, for restoration of the title to the estate of Givens, for the setting aside of the judgment of foreclosure and that a special administrator be appointed to bring about a division in kind among the rightful heirs of James Givens.

Here claiming: that Duggan is neither an indispensable nor a necessary party and instead of dismissing the complaint for his joinder, he should be dismissed from it; and keeping silent altogether about his co-heirs and co-claimants, cocitizens with the Alabama defendants, the appellant puts his main reliance on his contention that the suit involves a federal question under the 14th Amendment, and that by state action violating the due process clause, he has been deprived of his rights. In support of this contention, he urges upon us: (1) that his complaint is a charge that the defendants by obtaining judgments in the state court have thus used state power to deprive him and his co-claimants of property without due process of law; and (2) that it is a charge that some of the defendants are lawyers and, therefore, officers of the state courts, and as such they must be regarded as officers and instrumentalities of the state and their actions in deprivation of plaintiff's property as state action.

[2, 3] That there is no merit whatever in either of these contentions, the most casual examination of the authorities and a consideration of the fantastic results which would follow maintaining them, will at once make clear. If appellant were right, every case brought to judgment in a state court could be made the basis of a suit in the federal court upon the ground of a federal question by the mere allegation that the state court judgment was obtained in violation of due process. That this is not, it cannot be, the law, is as clear upon principle as it is upon authority. It is well settled that federal courts are not competent or authorized to entertain original suits to review state court action on the ground that a state court's judgment is erroneous. It is particularly well settled that the claim that a state court's judgment is erroneous raises no federal question on which the jurisdiction of federal courts can be based."

1 Cf. 35 C.J.S., Federal Courts, $ 77, p. 905; Chase Nat. Bank v. Citizens Gas Co., 314 U.S. 63, 62 S. Ct. 15, 86 L. Ed. 47 ; Alexander' v. Hillman, 296 U.S. 222, 56 S. Ct. 204, 80 L. Ed. 192; Dawson v. Columbia Ave. Savings Fund, 197 U.S. 178, 25 S. Ct. 420, 49 L. Ed. 713.

2 The complaint, after naming as respondents heirs and coheirs with complainant of his deceased father, James Givens, proceeds: “The foregoing named respondents are so made in this cause in order to avoid delay in the bringing of this action by appearing as complainants, who, upon motion made by them to be joined as co-complainants in this cause, your complainant would embrace as conducive to complete equity."

3 Wiggins Ect. Co. v. Jeffrey, 246 Ala. 183, 19 So. 2d 769.

[4] Its second point, that the acts of a lawyer are the acts of a state so that suits against him for wrongs it is claimed that he has done present federal questions giving rise to federal jurisdiction is, if anything, more fantastic. The judgment dismissing the complaint was right. It is

Affirmed.

EDWARD JAMES KENNEY, JR., APPELLANT, V. HONORABLE RAYMOND W. Fox,

APPELLEE

EDWARD JAMES KENNEY, JR., APPELLANT, V. HONORABLE MALCOLM K. HATFIELD,

THOMAS N. ROBINSON, DR. ROY A. MORTER, DR. JOSEPH MCCARTHY, APPELLEES
EDWARD JAMES KENNEY, JR., APPELLANT, V. JOSEPH J. KILLIAN, APPELLEE.

Nos. 12581, 12622, 12610
United States Court of Appeals, Sixth Circuit

April 19, 1956 Action against state court Judge, state institutional doctors, attorney and a prosecuting attorney for damages on account of plaintiff's alleged wrongful commitment to state mental institution. The United States District Court for the Western District of Michigan, Raymond W. Starr, Chief Judge, and W. Wallace Kent, J., 132 F.Supp. 305, 132 F.Supp. 814, and 133 F.Supp, 571, dismissed the actions, and plaintiff appealed. The Court of Appeals, Martin, Circuit Judge, held, inter alia, that, the common law rule of immunity of a judicial officer for acts done in exercise of his judicial function, where he has jurisdiction over both parties and subject matter, has not been abrogated by the Civil Rights Act, and judge and prosecuting attorney who acted in committing person to state mental institution were not subject to liability for alleged wrongful actions in this respect.

Judgments affirmed. 1. Civil Rights Ow13

Attorney who, as a private practitioner, prepared papers filed as the first step in proceeding resulting in plaintiff's confinement in mental institution was not amenable to an action based on the Civil Rights Statute. 28 U.S.C.A. 88 1343, 2201 ; 42 U.S.C.A. § 1983; Comp. Laws Mich. 1948, 8 330.1 et seq. 2. Civil Rights Om 13

Doctors who were attached to state mental institution could not go behind a court order of commitment, which on its face appeared valid, and were not amenable to an action under the Civil Rights Statute for damages for alleged wrongful commitment. 28 U.S.C.A. 88 1343, 2201 ; 42 U.S.C.A. § 1983; Comp. Laws Mich. 1948, § 330.1 et seq. 3. District and Prosecuting Attorneys Ow10

A prosecuting attorney is a quasi-judicial officer and enjoys the same immunity from a civil action for damages as that which protects a judge acting within his jurisdiction over the parties and the subject matter of the litigation. 4. Civil Rights Cm13

The common law rule of immunity of a judicial officer for acts done in exercise of his judicial function, where he has jurisdiction over both parties and subject matter, has not been abrogated by the Civil Rights Act, and judge and prosecuting attorney who acted in committing person to state mental institution were not subject to liability for alleged wrongful actions in this respect. 42 U.S.C.A. $ 1983.

Edward James Kenney, Jr., Benton Harbor, Mich., per se.

Edmund E. Shepherd, Sol. Gen. Lansing, Mich. (Gould Fox, Fox, Fox & Thompson, Kalamazoo, Mich., on the brief), for Raymond W. Fox.

* 35 C.J.S., 836, Federal Courts, § 28; Central Land Co. v. Laidley, 159 U.S. 103, 16 S. Ct. 80, 40 L. Ed. 91; Tracy v. Ginzberg, 205 U.S. 170, 27 S. Ct. 461, 51 L. Ed. 755 ; Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S. Ct. 185, 82 L. Ed. 268.

Paul E. Cholette, Grand Rapids, Mich. (Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids, Mich., on the brief), for Joseph J. Killian.

Paul E. Cholette, Grand Rapids, Mich., Charles Gore, Benton Harbor, Mich., Edmund E. Shepherd, Lansing, Mich. (Alexander, Cholette, Buchanan, Perkins & Conklin, Grand Rapids, Mich., Gore & Williams, Benton Harbor, Mich., Thomas M. Kavanagh, Daniel J. O'Hara, Perry A. Maynard, Lansing, Mich., Roland L. Huff, Kalamazoo, Mich., on the brief), for Malcolm K. Hatfield, Thomas N. Robinson, Dr. Roy A. Morter and Dr. Joseph McCarthy.

Before MARTIN, MILLER and STEWART, Circuit Judges.
MARTIN, Circuit Judge.

These three cases, brought to our court by the same appellant, were argued separately but may be appropriately dealt with in one opinion.

In No. 12,581, the appellant, Edward James Kenney, Jr., an attorney, brought an action for $123,000 damages against Honorable Raymond W. Fox, Judge of Circuit Court of Kalamazoo County, Michigan. He prayed, in the alternative, for a declaratory judgment determining the dismissal by Judge Fox of his action against Dr. Morter and others to be null and void. He based the jurisdiction of his cause of action upon Title 28, U.S.C.A. § 1343, as amended, and upon Title 28, U.S.C.A. 82201, as amended. His claim for recovery was grounded upon the federal civil rights statute, 42 U.S.C.A. § 1983, formerly 8 U.S.C.A. § 43, which provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

In a well considered opinion, Kenney v. Fox, D.C.W.D. Mich., 132 F. Supp. 305, United States District Judge Starr sustained the motion to dismiss filed by Judge Fox. After a painstaking review of the authorities, the district judge summarized his reasons for dismissing Kenney's action to be that Judge Fox, as a state circuit court judge, had jurisdiction and in dismissing Kenney's state court action was acting in his official judicial capacity; that he did not exceed his authority and was not acting in bad faith or inotivated by malice, prejudice, bias, partiality, undue influence, or from other improper motives; that Kenney, as a dissatisfied litigant, was in reality seeking a federal court review of a state court decision; that the complaint did not state facts which, under the Civil Rights Act, would entitle him to relief against the judge; and that the complaint failed to state a cause of action upon which relief could be granted. The facts are sufficiently detailed in the aforementioned opinion of the United States District Judge, reported in D.C., 132 F.Supp. 305, and will not be repeated here. The law of the case will be discussed later in this opinion.

In No. 12,622, the appellant, Edward James Kenney, Jr., brought an action, based on 42 U.S.C.A. § 1983 (formerly 8 U.S.C.A. § 43], on 28 U.S.C.A. § 1343, and under certain statutes of Michigan [12 M.S.A., section 14.801 et seq., Comp. Laws of Mich. 1948, $ 330.1 et seq.) for deprivation of his alleged civil rights by his confinement in a Michigan mental institution. He named as defendants the Honorable Malcolm A. Hatfield, Probate Court Judge of Berrien County, Michigan; Thomas N. Robinson, an attorney on whose alleged recommendation the commitment of plaintiff was made; Dr. Roy A. Morter, Medical Superintendent of the Kalamazoo State Hospital; and Dr. Joseph McCarthy, a physician on the staff of that state institution. The basic allegation of appellant was that each of the defendants had participated in a series of acts which caused the confine ment of plaintiff in the state mental hospital and his continued detention there.

[1] The district court sustained the motions of all the defendants to dismiss for the reasons stated by District Judge Kent in his carefully prepared opinion in Kenney v. Hatfield, D.C.W.D. Mich., 132 F. Supp. 814. The facts, being adequately stated there, will not be repeated here. We pause to say that we think the district judge correctly distinguished the opinions of this court in McShane v. Moldovan, 6 Cir., 172 F.2d 1016, 1017; and Manning v. Ketcham, 6 Cir., 58 F.2d 948; 132 F.Supp. 820. We are in accord with his reasoning, 132 F.Supp. 817, that Robinson, a private practitioner, in preparing the papers filed as the first step in the proceedings resulting in Kenney's commitment to the Kalamazoo State Hospital, was not amenable to an action based on the civil rights statute. See Whittington v. Johnston, 5 Cir., 201 F.2d 810, 811, cited in the opinion of the United States District Judge.

[2] We agree also with the reasoning of the district judge concerning the nonliability of the two doctors. As stated in his opinion, the institutional doctors should not be expected or even permitted to go behind a court order of commitment of a person to a state mental hospital where, on its face, the order appears to be valid. Indeed, a Michigan statute, section 14.805 (10), Michigan Statutes Annotated, Comp. Laws 1948, $ 330.15, provides, in part: "The order for admission shall be full and sufficient authority and protection to the medical superintendent, or the person acting as such in his absence, for receiving and detaining in such institution the person named therein, and he shall not be liable to any suit or action on account thereof.” 132 F.Supp. 818.

We are in accord also with the dismissal of the case as to the state probate judge, but will reserve discussion of the question of judicial immunity to the latter part of the opinion.

In No. 12,610, the appellant, Edward James Kenney, Jr., brought an action based upon the civil rights statute, 42 U.S.C.A. § 1983, against Joseph E. Killian, prosecuting attorney of Berrien County, Michigan, for alleged false imprisonment and malicious prosecution upon allegations that the defendant official caused the plaintiff to be confined in a county jail for about forty hours, in violation of his claimed civil rights. The district court held that the action was barred by the Michigan two-year statute of limitations; that the complaint failed to state a claim upon which relief could be granted; and that the defendant was immune from civil liability to the plaintiff under the civil rights statute. District Judge Starr wrote a full-dress opinion, Kenney v. Killian, D.C., 133 F. Supp. 571, in which he set forth the facts, in view of which we consider it unnecessary to restate them here.

[3] We pretermit decision upon whether Kenney's action is barred by the statute of limitations, but uphold the dismissal of the suit upon the basis of no cause of action. We think the district judge has supplied in his opinion compelling reasons for his dismissal of Kenney's action against the prosecuting attorney, who was acting in his official capacity in connection with all actions of which appellant complains. A prosecuting attorney is a quasi-judicial officer and enjoys the same immunity from a civil action for damages as that which protects a judge acting within his jurisdiction over the parties and the subject matter of the litigation. Yaselli v. Goff, 2 Cir., 12 F. 2d 396, 404, 56 A.L.R. 1239; Cawley v. Warren, 7 Cir., 216 F. 2d 74, 76; Laughlin v. Rosenman, 82 U.S. App. D.C. 164, 163 F. 2d 838.

We shall now discuss, rather extensively, the important doctrine of judicial immunity and the question of whether it has been abrogated or impaired by virtue of the Civil Rights Act in an action brought under that statute.

The leading American authority upon the subject of judicial immunity is the constantly cited case of Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646, in which Mr. Justice Field wrote the opinion of the Supreme Court nearly ninety years ago. In holding that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction and alleged to have been done maliciously or corruptly, the eminent jurist said: “A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subjectmatter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offence, which is not by the law made an offence and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction,

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