On January 26, 1999, Plaintiff entered into a stipulation obligating
him to make two payments of $37,500 each to his wife: the first on
February 22, 1999, and the second on March 22, 1999. (Transcript of Mar.
1, 1999 Sentencing Appearance before Hon. Joan B. Lefkowitz at 4,
Cappello v. Cappello, index no. 16699/97 ("Mar.Transcript").) When
Plaintiff appeared in court on February 22, 1999 without the first
payment, Justice Lefkowitz ordered Plaintiff to make that payment in court
on March 1, 1999. (Mar. Transcript at 7.) During the week between
February 22 and March 1, 1999, Plaintiff's attorney moved for a stay of
enforcement, based upon an inability to pay, which was denied by Justice
Lefkowitz from the bench on March 1, 1999. (Mar. Transcript at 4.)
Plaintiff appeared in court before Justice Lefkowitz on March 1, 1999 and
failed to make the ordered payment. (Mar. Transcript at 3.) Before
incarcerating Plaintiff, Justice Lefkowitz stated "there ha[d] been no
change of circumstance since he agreed to . . . pay, and nothing has been
paid. There is nothing here that I can even forgive him on." (Mar.
Transcript at 6-7.) The Judge then found Plaintiff in contempt of her
order to pay and sentenced him to 90 days in the Westchester County
Jail. (Mar. Transcript at 7.)
Although Plaintiff does not express a clear understanding of his
obligations, it appears from the record that the stipulation was never
withdrawn or amended, nor was any order arising from it ever vacated.
(Mar. Transcript at 7; see also Transcript of Sept. 22, 2000 Appearance
before Hon. Colleen McMahon at 8, Cappello v. The State of New York, et
al., index no. 00CV4072 ("Sept.Transcript").) Moreover, Plaintiff's
attorney stated at the very beginning of the proceedings on March 1 that
Plaintiff's son had accompanied him to court to drive Plaintiff's car
home "[i]f Mr. Cappello is incarcerated today," (Mar. Transcript at 3),
which strongly suggests that incarceration came as no surprise to
Plaintiff served 15 days of his 90 day sentence. (Compl. ¶ 24.) He
was released on March 15, 1999. (See id.)
Plaintiff appealed the order holding him in contempt. On July 31,
2000, the Appellate Division reversed Justice Lefkowitz' contempt order,
holding that she was "without jurisdiction to punish the defendant for
contempt." Cappelto v. Cappello, 274 A.D.2d 539, 712 N.Y.S.2d 42, 2000 N
YSlip Op. 07195 (2000), (emphasis added).
Plaintiff then filed a complaint against his wife's attorneys with
defendant Grievance Committee for making an oral, rather than a written,
application for contempt to Justice Lefkowitz, and alleging a conspiracy
between them to cause Plaintiff harm. (Compl. ¶ 26.) According to the
complaint, defendant Fuchs, an attorney with the Grievance Committee,
informed Plaintiff that his complaint would not be pursued. (Compl.
Plaintiff filed the instant complaint on May 31, 2000, naming the State
of New York, the Grievance Committee and its attorney, Freda Fixler
Fuchs, the County of Westchester, the Norwood Jackson Correctional
Facility, and Hon. Joan B. Lefkowitz as defendants. Insofar as the
complaint seeks to hold Justice Lefkowitz personally liable for her
erroneous contempt ruling, Plaintiff's claims arise under
42 U.S.C. § 1983. (Compl. ¶¶ 1, 2.) Cappello alleges that Justice
Lefkowitz, acting under color of law as a New York State Supreme Court
Justice, deprived him of the "rights, privileges, and immunities secured
by the Constitution of the United States" when she summarily ordered him
to be incarcerated for contempt on March 1, 1999. (Compl. ¶ 31.)
Grounds for Decision
Plaintiff bases his § 1983 claim on the statements made by the
Appellate Division in overturning the contempt, specifically, that Justice
Lefkowitz was without jurisdiction to hold Plaintiff in contempt on the
oral application of his wife's counsel, and
that she failed to comply with procedural rules that such an application
be made in writing. (Id.)*fn1 Plaintiff contests his obligation to pay
under the stipulation agreement, but his protestations are not supported
by the record. Rather, the record indicates that Plaintiff was clearly in
violation of a court order to pay when he was found in contempt, and that
the only issue before this Court is whether Justice Lefkowitz' failure to
afford him proper written notice before holding him in contempt
incarcerating him renders her personally liable in damages. This Court
finds that it does not.
It is well-settled that judges are immune from suits for damages
arising out judicial acts. See Bradley v. Fisher, 80 U.S. 335, 13 Wall.
335, 20 L.Ed. 646 (1871); Pierson v. Bay, 386 U.S. 547, 87 S.Ct. 1213, 18
L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099,
55 L.Ed.2d 331 (1978); Forrester v. White, 484 U.S. 219, 225, 108 S.Ct.
538, 98 L.Ed.2d 555 (1988); Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286,
116 L.Ed.2d 9 (1991); Tucker v. Outwater, 118 F.3d 930, 935 (2nd Cir.
1997). This immunity dates to medieval times. See Forrester, 484 U.S. at
225, 108 S.Ct. 538. Judges are frequently called upon to make decisions
which disappoint "some of the most intense and ungovernable desires that
people can have." Id. at 226, 108 S.Ct. 538. Personal liability for each
decision would result in an "avalanche of suits" that would necessarily
diminish the judge's authority to settle disputes. Bradley, 80 U.S. at
347, 13 Wall. 335. Indeed, society's increased reliance on the litigation
process could not have arisen without some protection for judges for
determinations made in their judicial capacity.
In addition, the availability of appellate review now ensures that
"[m]ost judicial mistakes or wrongs are open to correction through
ordinary mechanisms of review, which are largely free of the harmful
siderules effects inevitably associated with exposing judges to personal
liability." Forrester, 484 U.S. at 227, 108 S.Ct. 538. Finally, a judge
can be removed from office by imported peachment for egregious behavior.
See Bradley, 80 U.S. at 350, 13 Wall. 335 (judge who acts "with
partiality, or maliciously, or corruptly, or arbitrarily, or oppressively
. . . may be called to an account by impeachment . . ."). Appellate
review and and impeachment are the appropriate avenues for correcting
judicial error; personal liability is neither desirable, nor, in most
cases, necessary to correct judicial errors. See, e.g., Forrester, 484
U.S. at 227, 108 S.Ct. 538.
Immunity extends as far as judicial acts that also happen to be
malicious or corrupt, but it does not extend to activities performed by
the judge in an unofficial capacity. See Stump, 435 U.S. at 350, 98
S.Ct. 1099; Forrester, 484 U.S. at 227, 108 S.Ct. 538; Bradley, 80 U.S.
at 346-347, 349, 13 Wall. 335. A precise definition of this class of
"official" acts has never been undertaken by the United States Supreme
Court. See Forrester, 484 U.S. at 227, 228, 108 S.Ct. 538. However cases
do distinguish between official and unofficial acts of judges for the
purposes of immunity. See id.; see also Stump, 435 U.S. at 350, 98 S.Ct.
The' Supreme Court's 1871 decision in Bradley provides the foundation
for modern analyses of immunity in the context of questionable judicial
actions. See Bradley, 80 U.S. 335, 13 Wall. 335, 20 L.Ed. 646; Stump,
435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331. In Bradley, the Court
grappled with the very same issue before this Court today: namely,
whether a Judge's failure to observe accepted procedure defeats judicial
immunity such that the Judge could be held personally liable in damages
under the equivalent of 42 U.S.C § 1983.
See Bradley, 80 U.S. 335, 13 Wall. 335, 20 L.Ed. 646.*fn2
Under circumstances similar to the present case, Justice Field found that
it did not. See id. at 357, 13 Wall. 335.
In 1867, attorney Joseph H. Bradley represented John H. Suratt at trial
for the assassination of President Lincoln. See Bradley, 80 U.S. 335, 13
Wall. 335, 20 L.Ed. 646. The jury failed to reach a verdict in the case.
After dismissing them, Justice George P. Fisher recited an order into the
record condemning Mr. Bradley for allegedly threatening the Judge with
"personal chastisement" during a recess. Id. at 337, 13 Wall. 335. The
Judge concluded his remarks by ordering that Bradley's name "be stricken
from the roll of attorneys practicing in this court." Id. at 337, 13
In Bradley, as in Gappello, the appellate level court found that the
trial judge "possessed no power to punish the plaintiff on account of
contemptuous conduct". Bradley, 80 U.S. at 345, 13 Wall. 335; see also
Cappello v. Cappello, 274 A.D.2d 539, 712 N.Y.S.2d 42, 2000 N.Y.Slip Op.
07195 (2000),. Accordingly, Bradley was reinstated as an attorney in that
district. Bradley, 80 U.S. at 346, 13 Wall. 335.
Bradley, like Cappello, then sued the Judge for damages under the
equivalent to 42 U.S.C. § 1983, claiming the Judge was personally
liable because he had acted without jurisdiction. See Bradley, 80 U.S. at
335, 13 Wall. 335; Cappello, 274 A.D.2d 539, 712 N.Y.S.2d 42, 2000
N YSlip Op. 07195. Bradley asserted that he had had no notice "of any
kind", id. at 338, 13 Wall. 335, and that Judge Fisher was "without
. . . . . jurisdiction to make the order". Id. at 339, 13 Wall. 335. The
charges are virtually identical to Cappello's against Justice Lefkowitz.
(See Compl. at ¶¶ 21-23.); see also Cappello, 274 A.D.2d 539,
712 N.Y.S.2d 42, 2000 N.Y.Slip Op. 07195. Despite the fact that Justice
Fisher was without jurisdiction to order Bradley stricken from the list
of attorneys, the Supreme Court held that Justice Fisher could not be
held personally liable in damages. Bradley at 357, 13 Wall. 335.*fn3
The Bradley Court held that immunity extends to all judicial acts "even
when such acts are in excess of their jurisdiction, and are alleged to
have been done maliciously or corruptly." Bradley, 80 U.S. at 351, 13
Wall. 335; see also Stump, 435 U.S. at 364-365, 98 S.Ct. 1099. The Court
explained that this was:
[N]ot for the protection of the malicious judge . . .
but for the benefit of the public, whose interest it is
that the judges should be at liberty to exercise their
functions with independence, and without fear of
consequences. Bradley, 80 U.S. at 349, 13 Wall. 335
(quoting Scott v. Stansfield, 3 Law Reports, Exchequer
According to Justice Field, the relevant inquiry focused on whether the
judge acted "in excess of jurisdiction" or in the "clear absence of all
jurisdiction". Bradley, 80 U.S. at 352, 13 Wall. 335. Subsequent
decisions have maintained this distinction, clarifying those two
categories of activity. See Stump, 435 U.S. at 349-350, 98 S.Ct. 1099;
Mireles, 502 U.S. at 11-12, 112 S.Ct. 286; Tucker, 118 F.3d at 933.
Justice Field gave the example of a probate judge who proceeded to try
parties for "public offences". Bradley, 80 U.S. at 352, 13 Wall. 335. The
judge who does so knowingly exercises "usurped authority," and judicial
immunity will not protect him from liability. Id. By contrast, the judge
of a criminal court who tries and sentences a defendant for an act which
is not a crime, or who imposes a greater sentence than is authorized by
law, cannot be held personally liable for his actions because they are
merely "in excess" of jurisdiction. Id. at 352, 13 Wall. 335.
Since 1871, the Supreme Court has clarified — without overturning
— many of the subtie boundaries of immunity originally set forth in
Bradley. In Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288
(1967), the Supreme Court held that judicial immunity was not diminished
by the existence of 42 U.S.C. § 1983. That decision was given
practical effect in Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55
L.Ed.2d 331 (1978), in which the Court confirmed immunity from suit under
§ 1983 for one judge's acts, despite the devastating consequences of
his failure to follow procedure. In Stump, the mother of a "somewhat
retarded" 15 year old girl approached Justice Stump with a petition
compelling surgical sterilization of her daughter. Stump, 435 U.S. at
349, 98 S.Ct. 1099. The petition was approved "the same day in an ex
parte proceeding without a hearing and without notice to the daughter or
appointment of a guardian ad litem." Id. The operation was performed, and
the daughter was told she had her appendix removed. Id. Several years
later, the young woman married and could not conceive children. Id. She
discovered she had been sterilized, and brought a § 1983 action
against the judge. Id. Focusing on the "judicial nature" of Justice
Stump's actions, the Court held that judicial immunity protected Justice
Stump from liability for his actions, notwithstanding his "failure to
comply with elementary principles of procedural due process." Id. at
350, 98 S.Ct. 1099 (emphasis added).
In the 1988 case of Forrester v. White, 484 U.S. at; 227, 108 S.Ct.
538, the Court clarified the nature of the acts for which a judge can
claim immunity, separating those acts which are "truly judicial", or
deserving of immunity, from "acts that simply happen to have been done by
judges", for which there is no immunity. The Forrester Court articulated
that "immunity is justified and defined by the functions it protects and
serves, not by the person to whom it attaches." Forrester at 227, 108
S.Ct. 538. In other words, judicial immunity resides in the position of
the person who performs the judicial function, not in the person who at
times performs judicial functions. This clarification is consistent with
Bradley, and with later decisions, in that the Court uniformly holds that
the benefit to the public of an independent judiciary outweighs the
benefit of immunity to any particular judge. See, e.g., Forrester,
484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 and Bradley, 80 U.S. 335, 13
Wall. 335, 20 L.Ed. 646.
In Forrester, the Court declined to extend immunity to a judge who had
fired a probation officer employee in violation of Title VII. Forrester
at 229, 108 S.Ct. 538. The decision was based on the determination that
the judge was acting in an administrative — not judicial —
capacity when he fired the employee, and could not meaningfully be
distinguished from a district attorney or anyone else who makes
employment decisions. Forrester at 229, 108 S.Ct. 538. Because the
defendant judge was not performing a judicial function when the Title VII
violation occurred, judicial immunity did not protect him from personal
liability. See Forrester, 484 U.S. at 230, 108 S.Ct. 538.
With Mireles v. Waco in 1991, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116
L.Ed.2d 9 (1991), the Court specified that judicial immunity is only
overcome in two circumstances: 1) when a judge performs non-judicial
"functions (i.e., administrative tasks etc.), and 2) when a judge acts
complete absence of all jurisdiction" (i.e., no jurisdiction over the
matter or the parties). Both circumstances can be seen as aspects of
Bradley's "absence of jurisdiction" category, as opposed to altering
Bradley's "in excess of jurisdiction" category for which immunity is
retained. Bradley, 80 U.S. at 351-352, 13 Wall. 335.
In view of these authorities, imposition of § 1983 on Justice
Lefkowitz would be impossible in this case. Hon. Joan B. Lefkowitz is a
New York State Supreme Court Justice in a court of general jurisdiction.
She was acting in her judicial capacity when she held Plaintiff in
contempt without affording him notice and an opportunity to be heard.
The situation cannot be compared to Forrester, where the judge violated
Title VII in his capacity as an employer, not as a judge. Nor can any
similarities be drawn to Bradley's probate judge, who had no jurisdiction
over criminal matters. The almost eerily exact parallels are Bradley and
Stump: Justice Fisher overreacted to Bradley and summarily disbarred him
in much the same way Justice Lefkowitz overreacted to Cappello and
summarily incarcerated him. Justice Stump's ex parte approval of a
sterilization order is a far more egregious act, yet he was immune from
liability because it was a judicial act. Judges cannot be held personally
liable for judicial mistakes. Therefore, Plaintiff has failed to state a
claim "upon which relief can be granted" with respect to defendant
Lefkowitz, and all claims against her are dismissed. Fed.R.Civ.Proc.
Remaining State Defendants
Plaintiff's federal claims against the remaining State defendants
— the State of New York, Grievance Committee for the Ninth Judicial
District, and Grievance Committee Attorney Fuchs — are similarly
deficient. Plaintiff claims civil rights violations under
42 U.S.C. § 1981, 1983, 1985, 1986 and under the Fourth and
Fourteenth Amendments. (Compl. ¶¶ 31-36.) All claims against
defendants State of New York and the Grievance Committee for the Ninth
Judicial District are absolutely barred by the Eleventh Amendment. See
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134
L.Ed.2d 252 (1996); Pennhurst State School & Hospital v. Halderman,
465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Sassower v. Mangano,
927 F. Supp. 113, 121 (S.D.N Y 1996) (claims against Grievance
Committee, an arm of the state, are barred). Federal interpretation of
state law, vis a vis the conduct of a state official, is similarly
prohibited by the Eleventh Amendment, therefore the claims against
defendant Fuchs are also barred. Pennhurst at 106, 104 S.Ct. 900. Thus
all claims against the State of New York, the Grievance Committee, and
defendant Fuchs are dismissed. Fed.R.Civ.Proc. 12(b)(6).
For the foregoing reasons, the federal claims are dismissed with
respect to all State defendants.
I decline to exercise pendant jurisdiction over the remaining state law
claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct.
1130, 16 L.Ed.2d 218 (1966) (federal court that dismisses all federal
claims before trial should also dismiss state claims for resolution in
The complaint is dismissed as against defendants Lefkowitz, The State
of New York, the Grievance Committee for the Ninth Judicial District and
This constitutes the decision and order of the Court.