by Ed Wesoloski
Dolan Media Newswires
DETROIT, MI -- (December 4, 2013) Where plaintiffs’ child was placed in foster care for several days after his father inadvertently gave the 7-year-old an alcoholic beverage at a baseball game, the judge whose signature was on the order authorizing the placement can be sued in her individual capacity.
Judicial immunity does not apply because the placement was accomplished without an actual judicial review of the removal petition.
Background
Plaintiff and his son attended a Detroit Tigers baseball game. Plaintiff bought a “Mike’s Hard Lemonade” for his son, not realizing that it was an alcoholic beverage. A security guard saw the child drinking the beverage. This set a chain of events into motion that culminated in the child’s temporary placement in foster care.
Plaintiff filed a civil-rights complaint naming police officers, government officials, governmental agencies, and the judge whose signature was on the removal order that led to the foster care placement.
In the current phase of this litigation, the judge, Wayne Circuit Judge Judy Hartsfield, seeks dismissal of the claims lodged against her.
Discussion
“Hartsfield is not entitled to absolute judicial immunity because the acts complained of in the first amended complaint are not judicial acts.
“The Supreme Court has ‘made clear that whether an act by a judge is a “judicial” one relate[s] to the nature of the act itself, i.e., 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.’ …
“In other words, courts ‘look to the particular act’s relation to a general function normally performed by a judge.’ …
“Hartsfield argues that the nature of the act she performed which plaintiffs complain of — the signing of a piece of paper that eventually became an order — is a judicial action normally performed by a judge.
“Looking at the allegations in the first amended complaint, however, shows that Judge Hartsfield’s alleged involvement in the scheme of things involved non-judicial actions:
“‘60. In fact, the Order was pre-signed by Defendant Judge Hartsfield prior to Saturday, April 5, 2008 together with numerous other blank orders that were to be filled in by the individual on duty at the Juvenile Court and which granted any relief requested by the police.
“‘61. Defendant Judge Hartsfield did not review the Order or speak with the individual on duty at the Juvenile Court before issuance of the Order.
“‘62. Instead, Defendant Judge Hartsfield put in place a process and procedure whereby the individual on duty at the Juvenile Court was mandated to fill-in partially completed, pre-signed orders of removal upon the filing of a complaint by the police and to issue such orders as valid court orders to place minors in the custody of DHS.
“‘63. Per this process and procedure put in place by Defendant Judge Hartsfield, the Order, which appeared facially valid, was issued as if valid even though, in fact, it was issued without judicial review and in violation of Michigan law and the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution.’”
No judicial review
“It is not Hartsfield’s actions in signing the form of order that plaintiffs complain about. Rather, it is Hartfield’s actions in putting in place a policy which allowed a pre-signed removal form to be filled in and docketed by non-judicial personnel, without judicial review, for a petition submitted to the family court after normal business hours.
“These actions, if true, are administrative. Hartsfield essentially signed pieces of paper that had no vitality until a third party — in this case a probation officer — filled in certain information on the paper.
“At the time the form of order was signed by Hartsfield, there were no parties before the court nor were there any active child custody proceedings. Her actions therefore could not have been ‘judicial acts.’
“The central question in determining whether an act is ‘judicial’ as opposed to ‘administrative’ is whether the act resolves a dispute between the parties who have invoked the jurisdiction of the court.
“Hartsfield’s pre-signed ‘order’ was not ‘connected to any particular litigation.’
“Instead, a pre-signed paper when filled out by a probation officer and submitted to the family court after hours was used to deprive Leo and his parents from any meaningful judicial consideration in his removal proceedings.
“Hartsfield’s act of signing the paper preceded any adjudication as there were no parties, proceedings, or live case or controversy at the time she signed the ‘order.’
“No judicial act occurred until the probation officer filled in the pre-signed paper with case specific information. The pre-signed paper, therefore, was signed by Hartsfield in an administrative capacity and she is not protected by absolute judicial immunity.”
Hartsfield’s motion to dismiss is denied.
Ratte v. Corrigan. (MiLW No. 02-83745 - 21 pages) (Eastern District of Michigan) Cohn, J.
Entire contents copyrighted © 2013 by The Dolan Company.
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