Arizona Republic Columnist Laurie Roberts is justifiably upset in her column this morning, Judge Ellis to Superior Court: Bite me. It stems from the defense being mounted by a now retired probate judge, Hon. Lindsay Ellis, to allegations she acted improperly when, in March, she approved payments of almost $800,000 from the estate of 88 year old Marie Long. The judge approved fee payments to a group of fiduciaries, caregivers, and probate lawyers working on behalf of the vulnerable ward.
What got Laurie Roberts exercised was Judge Ellis’ invocation, through counsel, of judicial immunity in response to allegations of impropriety over ex-parte contacts Judge Ellis is accused of having made with the lawyers seeking her approval of their fees. Such contacts are ex parte when only one side of a dispute knows about them because the other side is never told. I blogged about this earlier at Probate judge’s ‘ex–parte‘ contacts with opposing counsel?
The controversy that erupted over those one-side-only ex-parte communications has now led to an evidentiary hearing on Monday, June 7, 2010, on whether there’s been any misconduct and what to do about it, if there is.
There’s plenty of reason for umbrage over what’s been going in the probate courts here and elsewhere. I have repeatedly blogged about the epidemic of elder financial abuse perpetrated nationwide and how probate courts remain largely unable to adequately police it.
But unfortunately, there’s not going to be any assuagement of the ire critics have against the proceedings in Long’s case. It’s bad news for Laurie Roberts and everyone else angry over what happened. That’s because the defense lawyers hired by Judge Ellis have the stronger legal arguments on their side.
From Roberts column, the judge’s defense is grounded on judicial immunity as well as on the fact there are alternative forums and methods for vindicating private rights. Those arguments will trump any equitable ones for Marie Long.
Non gode l’immunita ecclesias. 
In 2004, in chronicling judicial misconduct, NYU Law Professor Geoffrey Miller wrote in a Texas Law Review article, Bad Judges, about the legal immunity judges enjoy. It’s grounded in the sound public policy that judicial independence needs safeguarding.
The weight of legal authority sides with the judges so long as they are acting within their general jurisdiction and their acts are judicial ones. This doctrine is well entrenched and is sometimes referred to as the Bradley immunity from the 1871 U.S. Supreme Court case, Bradley v. Fisher. “Judges of courts of record of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” 
To show how well protected judges are, look no further than the 1978 U.S. Supreme Court decision concerning an Indiana judge who approved ex parte, the sterilization of mentally-challenged 15 year old Linda Kay Spitler Sparkman without her knowledge or consent. 
The girl’s mother had filed a verified petition in an Indiana Circuit Court, a court of general jurisdiction under an Indiana statute, for authority to have her “somewhat retarded” daughter sterilized. Circuit Judge Harold D. Stump approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem.
Sparkman thought she was having her appendix removed. Instead, it was a tubal ligation. The Court held that Indiana law had vested in the Circuit Judge the power to entertain and act upon the petition for sterilization. As a result, he was immune from damages liability even if his approval of the petition was in error.
The Supreme Court made several critical points in reaching its conclusion, including the following:
“The factors determining whether an act by a judge is “judicial” relate to the nature of the act itself (whether it is a function normally performed by a judge) and the expectation of the parties (whether they dealt with the judge in his judicial capacity), and here both of these elements indicate that the Circuit Judge’s approval of the sterilization petition was a judicial act, even though he may have proceeded with informality.”
Additionally, the Court found that, “Disagreement with the action taken by a judge does not justify depriving him of his immunity, and thus the fact that in this case tragic consequences ensued from the judge’s action does not deprive him of his immunity; moreover, the fact that the issue before the judge is a controversial one, as here, is all the more reason that he should be able to act without fear of suit.”
Snowball’s chance in Arizona.
The temperature’s supposed to hit 110 this weekend. That’s just about balmy for June in Arizona. Unfortunately, for Marie Long and her supporters, there’s as much a chance of overcoming judicial immunity as there is of finding a snowball on a Phoenix street tomorrow.
Given the weight of legal authority and the underlying facts, it seems clear Judge Ellis had jurisdiction to act. Moreover, even if her act was ex parte in supposedly contacting one side of litigants and not the other, it doesn’t make that act any less judicial.
Will they or won’t they?
It’s uncertain that the Arizona Commission on Judicial Conduct will bother to take up an inquiry, regardless of what happens in court on Monday. Under Rule 6 of its procedural rules, the grounds for judicial discipline,“include willful misconduct in office, willful and persistent failure to perform judicial duties, habitual intemperance, conduct prejudicial to the administration of justice that brings the judicial office into disrepute, or a violation of the code.”
But under Rule 7, misconduct is distinguished from error, “The commission shall not take action against a judge for making erroneous findings of fact or conclusions of law in the absence of fraud, corrupt motive, or bad faith on the judge’s part, unless such findings or conclusions constitute such an abuse of discretion as to otherwise violate one of the grounds for discipline described in these rules or the code.”
The Commission may likely find neither.
Certainly there’s no comparing what happened to Marie Long and the loss of her estate versus what happened to 15 year old Linda Kay Spitler Sparkman. The point of mentioning that especially egregious case is simply to underscore how difficult it is to pierce the steel wall of judicial immunity.
In his dissent to Bradley, Justice Powell took as central the fact that for the sterilized 15 year old, her rights could no longer be vindicated by appeal to a higher authority, much less a judicial disciplinary commission. “Underlying the Bradley immunity, then, is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.”
Justice Powell went on to add that “where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative.”
His dissent concluded in agreement with the other dissenter, Justice Stewart. “Judge Stump’s unjudicial conduct insured that “[t]here was and could be no appeal.” The complete absence of normal judicial process foreclosed resort to any of the “numerous remedies” that “the law has provided for private parties.””
All that said, Justices Powell and Stewart were on the losing end of the decision. If Sparkman who was involuntarily sterilized couldn’t vindicate her rights, there’s much less chance when ‘it’s only about someone else’s money.’
 While this Latin phrase says the right to church sanctuary has been revoked, judicial immunity retains its full vitality given the argument that private rights can give way to preserve a completely independent judiciary.
 Stump v. Sparkman 435 U.S. 349, 363-364 (1978).