Resubmitted October 22, 1965.
Kalodner, Chief Judge, and Biggs, Maris, McLaughlin, Staley, Hastie, Ganey, Smith and Freedman, Circuit Judges. Kalodner, Chief Judge (concurring in the result). Hastie, Circuit Judge (concurring in the result). Biggs, Circuit Judge (dissenting). Freedman, Circuit Judge (dissenting).
The almost bizarre and complex factual background which prompted the present litigation has its genesis in certain events which occurred in the early 1950's. On October 29, 1950, William J. Bauers, Jr., the appellant herein, with two other inmates escaped from the Annandale Reformatory in Hunterdon County, New Jersey, and embarked upon a crime spree that carried him through Hunterdon and Essex Counties, New Jersey. Appellant's freedom, however, was short-lived; he was apprehended, charged and indicted for crimes committed in Essex County. He pleaded non vult to the charges of assault with intent to rob and auto larceny and was sentenced by the Essex County Court to four to six years on each indictment.
In the interim, the Hunterdon County Grand Jury had returned indictments against him for the escape from the reformatory and auto larceny. Although these indictments were returned on January 3, 1951, appellant was not tried for the offenses alleged therein until May of 1953. During this entire period, he was serving the sentence imposed upon him by the Essex County Court. When he eventually did appear in the Hunterdon County Court, he requested counsel, counsel was appointed, and a jury was selected. The Criminal Minutes indicate that all these events transpired prior to 10:15 A.M. on the day of trial. The factual elements surrounding the appointment of counsel are not greatly dissimilar from the case of Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), but no issue concerning this is involved here.
After a brief recess, Bauers pleaded guilty and was sentenced immediately to a term of two to three years on each indictment, the sentences to run concurrently with any sentence he was then serving (and apparently concurrently with each other). The state prison records indicate that Bauers had completed serving the Hunterdon County sentences prior to his release on parole on the Essex County sentences.
In February of 1963, Bauers applied to the Hunterdon County Court to dismiss the 1951 indictments and to vacate the sentences imposed on him after he had pleaded guilty. He contended that the indictments were illegal because he was a juvenile when the offenses were committed. The lower court denied his application, but the Appellate Division of the Superior Court of New Jersey reversed,*fn1 holding that since Bauers was not eighteen years old when the offenses were committed, jurisdiction over him was lodged exclusively in the Juvenile and Domestic Relations Court, N.J.Stat.Ann. 2A:4-14. Without a reference of the case to the county prosecutor by the juvenile court, N.J.Stat.Ann. 2A:4-15, no criminal process could be invoked against a juvenile. The court ruled that since the indictments were illegal, the pleas and sentences imposed were also illegal and should be expunged from the record.
Subsequently, Bauers instituted the present suit,*fn2 alleging that the defendant, Herbert T. Heisel, Jr., the Hunterdon County Prosecutor at all times relevant hereto, is liable in damages to the appellant for the deprivation of his liberty and for the denial of his right to a speedy trial. The district court ordered the complaint filed and at the same time dismissed it as "lacking in merit and pertain[ing] to the matters over which the court has no jurisdiction."*fn3
On this appeal, the sole issue raised is whether the defendant, acting as the Hunterdon County Prosecutor, is immune from suit under the Civil Rights Act, 42 U.S.C. § 1983, R.S. § 1979.*fn4 Because a full consideration of the arguments presented requires a re-examination of the position taken by this court in Picking v. Pennsylvania R.R., 151 F.2d 240 (C.A.3, 1945), the case was submitted to the court en banc.
There is no question that Picking would be dispositive of the immunity issue presently before us. Consequently, the only portion of that opinion which we reconsider deals with the liability of a judicial officer under the Civil Rights Act of 1871. In Picking, it was decided that no immunity would be afforded to a justice of the peace, a member of the minor judiciary in Pennsylvania; however, the language of the opinion is far more sweeping:
"* * * We are not unmindful of the absolute privilege conferred by the common law upon judicial officers in the performance of their duties. * * * But the privilege as we have stated was a rule of the common law. Congress possessed the power to wipe it out. We think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub judice intended to abrogate the privilege to the extent indicated by that act and in fact did so. * * * The statute must be deemed to include members of the state judiciary acting in official capacity." 151 F.2d at 250. (Emphasis added.)
While we do not choose to quarrel with the propriety of this disposition at the time it was made, we do believe that the Act even then would have been at least equally susceptible to a contrary construction.*fn5 Nevertheless, we are certain that the reasoning employed and construction given R.S. § 1979 by the Supreme Court in Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), is contrary to the position we adopted in Picking and requires us to overrule it.
In Tenney, suit was brought against a committee and its members of a state legislature under R.S. §§ 1979, 1980(3), 42 U.S.C. §§ 1983, 1985(3), formerly 8 U.S.C. §§ 43, 47(3). The Court stated that the issue before it was:
"Did Congress by the general language of its 1871 statute mean to overturn the tradition of legislative freedom achieved in England by Civil War and carefully preserved in the formation of State and National Governments here?" 341 U.S. at 376, 71 S. Ct. at 788.
After making the concededly "big assumption" "that Congress has constitutional power to limit the freedom of State legislators acting within their traditional sphere," the Court answered its prophetic question:
"* * * We cannot believe that Congress -- itself a staunch advocate of legislative freedom -- would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us." Ibid.*fn6
"* * * Here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and * * * the statute of 1871 does not create civil liability for such conduct." Id. at 379, 71 S. Ct. at 789.
We are not alone in our belief that the construction given R.S. § 1979 in Tenney sheds new light on the situation which confronted us in Picking. Although Picking had been the cause of some immediate concern, see Note, 46 Colum.L.Rev. 614 (1946), it was not until after Tenney that its pronouncement on immunity became the object of wholesale disavowal. In fact, five circuits explicitly stated that Tenney had in effect overruled Picking. Stift v. Lynch, 267 F.2d 237 (C.A.7, 1959); Cuiksa v. City of Mansfield, 250 F.2d 700 (C.A.6, 1957), cert. denied, 356 U.S. 937, 78 S. Ct. 779, 2 L. Ed. 2d 813 (1958); Kenney v. Fox, 232 F.2d 288 (C.A.6), cert. denied sub nom. Kenney v. Killian, 352 U.S. 855, 77 S. Ct. 84, 1 L. Ed. 2d 66 (1956); Tate v. Arnold, 223 F.2d 782 (C.A.8, 1955); Morgan v. Sylvester, 125 F. Supp. 380 (S.D.N.Y., 1954), aff'd, 220 F.2d 758 (C.A.2), cert. denied, 350 U.S. 867, 76 S. Ct. 112, 100 L. Ed. 768 (1955); Francis v. Crafts, 203 F.2d 809 (C.A.1), cert. denied, 346 U.S. 835, 74 S. Ct. 43, 98 L. Ed. 357 (1953). This view has also been adopted by several district courts in this circuit. Woodruff v. City & County of Philadelphia, 38 F.R.D. 468 (E.D.Pa., 1965); Hardy v. Kirchner, 232 F. Supp. 751 (E.D.Pa., 1964); Ellis v. Wissler, 229 F. Supp. 196 (E.D.Pa., 1964); Perkins v. Rich, 204 F. Supp. 98 (D.Del., 1962), aff'd per curiam, 316 F.2d 236 (C.A.3, 1963); Ginsburg v. Stern, 125 F. Supp. 596 (W.D.Pa., 1954), aff'd on other grounds, 225 F.2d 245 (C.A.3, 1955).
Though we choose to make an independent analysis of the issue before us, our rationale differs little from what was said in Tate v. Arnold, supra:
"* * * Since the doctrine of judicial immunity is at least as well grounded in history and reason as is the rule of legislative immunity, the courts have interpreted the language * * * from Tenney * * * as authority for holding that the Civil Rights Act did not abrogate judicial immunity." 223 F.2d at 785.
and in Francis v. Crafts, supra:
"* * * The Picking case was decided in 1945 without benefit of the illumination and compelling analogy to be found in the opinion of the Supreme Court in Tenney v. Brandhove, supra, which came down several years later. In view of the discussion in the latter case, we have no doubt that the Third Circuit would no longer feel obliged, as it did in the Picking case, to read the Civil Rights Act in such literal and unqualified manner as to impose liability for damages upon a state judicial officer for acts done in the exercise of his judicial function. Certainly it would be absurd to hold, in the application of the Civil Rights Act, that judicial officers of a ...