Sydney Antonoff-Wertheimer | Does Absolute Judicial Immunity End With Parole Board Psychologists?
INTRODUCTION
Judicial immunity has its roots in traditional English common law and has long been recognized by federal courts. See Bradley v. Fisher, 80 U.S. 335, 347 (1871). The Supreme Court upheld this immunity after the passage of 42 U.S.C. § 1983, which created liability for state actors who deprive citizens or other persons of their Constitutional rights. 42 U.S.C. § 1982; Pierson v. Ray, 386 U.S. 547, 554 (1967). The question courts ask when determining liability in § 1983 cases is whether, under common law principles of immunity, the defendant would be immune from suit due to their judicial or quasi-judicial role. See, e.g. Malley v. Briggs, 475 U.S. 335, 339-40 (1986). The Supreme Court has established a presumption that only qualified immunity is necessary for government officials, refusing to expand absolute immunity beyond what is truly necessary. Burns v. Reed, 500 U.S. 478, 486-87 (1991). The general test is whether the defendant is serving a function that existed—or is analogous to a function that existed—under English common law that would entitle him to absolute immunity, but courts still come to different results based on the specific test they decide to use. This is the apparent reason for the circuit split discussed below.
THE ISSUE
Are parole board psychologists entitled to absolute immunity from § 1983 civil rights suits?
THE SPLIT
The Third Circuit
Under § 1983, Plaintiff John Williams sued a psychologist hired by the New Jersey Parole Board who conducted a psychological evaluation of him. Williams v. Consovoy, 453 F.3d 173, 176 (3rd Cir. 2006). The psychologist, Don E. Gibbons, Ph.D., wrote a report which contributed to the Parole Board’s decision to deny parole. Id. at 175. Williams claimed the Gibbons’ report was false, written to induce the Parole Board to deny parole. Id. at 176. The district court granted Gibbons’ motion for summary judgment, reasoning that Gibbons was entitled to absolute immunity due the adjudicative nature of his work. Id. Williams appealed. Id.
The Third Circuit used a “functional” test to determine immunity, based on the Supreme Court decision in Burns v. Reed, stating that an individual would have absolute immunity if their function was “integral to the judicial process.” Id. at 178. Based on this test, the court held that Gibbons’ function was integral to the judicial process and affirmed the district court’s holding that he was entitled to absolute immunity. Id. Williams contended that, because Gibbons’ report did not make an explicit recommendation for the parole board, Gibbons was not acting in a judicial capacity and should not be granted absolute immunity. Id. at 178-79. The Third Circuit did not directly disagree with this characterization of Gibbons’ function but emphasized the importance of judicial and quasi-judicial immunity in ensuring objective reports from experts like Gibbons. Id. at 179. This is a more expansive view of absolute judicial immunity than the Ninth Circuit held in the case discussed below.
The Ninth Circuit
In an appeal heard earlier this year, the 9th Circuit affirmed a district court’s ruling that parole board psychologists were not entitled to absolute immunity. Gay v. Parsons, 61 F.4th 1088, 1089 (9th Cir. 2023). Omar Sharrieff Gay sued psychologists Gregory Goldstein and Amy Parsons, claiming they discriminated against him because of his race and religion. Id. Goldstein and Parsons prepared a risk assessment report for a parole hearing that labeled Gay as a “high risk for future violence.” Id. In response to a motion for summary judgment, the district court held that the psychologists were entitled to qualified immunity on one claim, but could not prove they were entitled to qualified immunity or absolute immunity on the other claim at that stage in the proceedings. Id. at 1090. After discovery, the psychologists again moved for summary judgment, claiming absolute immunity, which the district court denied. Id. Goldstein and Parsons appealed immediately. Id.
The Ninth Circuit applied a different functional test than the Third Circuit. The Third Circuit largely relied on the Supreme Court case Burns v. Reed in their reasoning, while the Ninth Circuit referred to the test laid out in Antoine v. Byers & Anderson, 508 U.S. 429 (1993), decided two years after Burns. Gay, 61 F.4th at 1094. Under the Antoine “judicial functions" test, the Ninth Circuit held that Goldstein and Parsons were not entitled to absolute quasi-judicial immunity because they were not making the parole eligibility decision, but rather producing an advisory report. Id. at 1093. The test they used was not based on the importance of the psychologists’ function to the judicial process, like the Burns test, but the nature of their function, which, they determined, was not judicial. Id. However, the Ninth Circuit left the question of qualified immunity to the district court. Id. at 1095. The Ninth Circuit acknowledged the split from the Third Circuit, justifying their decision on the basis of Antoine, a more recent case than Burns, being the controlling authority on this issue. Id. at 1095.
LOOKING FOWARD
The question of whether to extend absolute judicial or quasi-judicial immunity to psychologists working for parole boards is narrow, but it shows that the extent of judicial immunity remains unclear in certain circumstances. Clarity is needed as to what roles in the judicial system entitle a person to absolute immunity from § 1983 civil rights suits. The historical aspect of the “judicial function” test makes it likely unsuitable to be replaced by a bright-line rule, but expanding absolute judicial immunity should be done with caution. The Supreme Court may want to make it clear who can and cannot receive this privilege.