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HUMPHREY v. COURT OF COMMON PLEAS OF YORK CTY.

August 8, 1986

DAVID T. HUMPHREY, BRYAN A. HUMPHREY, and ELIZABETH A. HUMPHREY, by their father and next friend, Plaintiffs
v.
THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA, All of its Judges, Masters, or other Judicial Officers, however described, THE YORK COUNTY BAR ASSOC., and HERMAN A. GAILEY, III, Esquire, Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, United States District Judge

 I. Introduction and Background.

 There is currently pending in this action three separate motions to dismiss plaintiffs' pro se complaint which was brought, in part, under 42 U.S.C. ยงยง 1983, 1985, 1986 and 1988.

 Plaintiffs are David T. Humphrey (Humphrey) and his minor children, Bryan A. Humphrey and Elizabeth A. Humphrey. Defendants are the Court of Common Pleas of York County, Pennsylvania, including all of its judges, masters or other judicial officers (the judicial defendants), Herman A. Gailey, III, Esq., an attorney who practices before the county court, and the York County Bar Association.

 The pro se complaint is vaguely worded but we believe that the following allegations may fairly be gleaned from it. Humphrey retained defendant Gailey to represent him in his custody dispute with his wife over the two minor plaintiffs. Gailey, however, refused to pursue all of Humphrey's legal rights because he had acquiesced in a policy adopted by the judicial defendants which precluded an award of equal physical custody. The judicial defendants had instructed all lawyers practicing within the county not to present or argue any custodial arrangement which the judicial defendants showed "by example and public pronouncement" not to be acceptable to the court, including equal physical custody. Gailey also, allegedly, improperly ended their contractual relationship by obtaining leave of court, acting through Judge Erb, to withdraw as Humphrey's counsel in the state court custody proceedings. Plaintiffs allege that Gailey ended the professional relationship because he did not want to pursue all of Humphrey's rights under state law. Plaintiffs also allege that the court was without jurisdiction to void the contract. The defendant bar association is alleged to be aware of the court's policy but has allowed it to continue even though it is in a position to cure the violation. The defendants are charged with knowledge of each other's actions and to have engaged in a conspiracy to deny plaintiffs their federal constitutional rights and rights under state law. Plaintiffs claim that they have been deprived of their right to be heard by an impartial court and have been deprived of each other's love, affection and companionship. There is also a pendent state claim against Gailey for malpractice. Plaintiffs seek compensatory and punitive damages.

 II. Discussion

 We note that we may only grant a motion to dismiss if plaintiffs can prove no set of facts that would entitle them to relief. See District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. July 9, 1986). We will also bear in mind that a civil rights complaint must set forth with factual specificity the conduct of defendants alleged to have harmed the plaintiffs. See Darr v. Wolfe, 767 F.2d 79 (3d Cir. 1985).

 A. The Motion to Dismiss of the Judicial Defendants.

 The judicial defendants request dismissal based upon the doctrine of judicial immunity. Judges may not be sued for actions taken in their judicial capacities unless there is a clear absence of jurisdiction. This is true even if the conduct is in excess of their jurisdiction and done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). Plaintiffs acknowledge this doctrine but assert that the action of the judicial defendants falls outside its protection. As noted previously, the plaintiffs complain that the judicial defendants notified attorneys practicing in York County not to argue equal physical custody in custody matters arising in the county. Plaintiffs assert that this conduct was legislative in nature, resulting in the implicit creation of a local law which was contrary to Pennsylvania law on the issue of joint physical custody. Hence, there was a clear absence of jurisdiction and the judicial defendants are not immune.

  The court in Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir.), cert. dismissed, 449 U.S. 1028, 101 S. Ct. 601, 66 L. Ed. 2d 491 (1980), interpreted Stump as providing the following test for determining when judicial immunity applies: (1) the act complained of must not have been taken in the clear absence of jurisdiction, and (2) the act must be a "judicial act." Id. at 1233. In turn, the act is a judicial one if (1) it is a function normally performed by a judge and (2) the aggrieved party has dealt with the judge in his judicial capacity.

 Plaintiffs could argue that this test is not satisfied here because they are complaining of the establishment of a general substantive policy outside the context of individual litigation. Judges do not have jurisdiction to create substantive law in that fashion. Additionally, this is not a function normally performed by a court nor did the plaintiffs deal with the court in its judicial capacity, since the promulgation of this policy occurred before adjudication of plaintiffs' custody matter.

 We believe, however, to accept plaintiffs' contention would severely weaken the doctrine of judicial immunity. Under plaintiffs' argument, to avoid the doctrine, all a plaintiff need do is allege an establishment of a policy on the part of a court or judge, unarticulated and created more from custom or habit, which is contrary to the substantive law, and plaintiff has accordingly complained of an act not normally performed by a judge. Judicial immunity should not be so lightly cast aside, *fn1" considering its important purpose:

 
The purpose of the doctrine is to benefit the public, "whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences." Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1218, 18 L. Ed. 2d 288 (1967). The Supreme Court has recognized that "the loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus." Butz v. Economou, 438 U.S. 478, 512, 98 S. Ct. 2894, 2913, 57 L. Ed. 2d 895 (1978) (citing Pierson, 386 U.S. at 554, ...

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