Judicial immunity

Judicial immunity

Burdick v. Town of Schroeppel, USCA, Second Circuit, 17-1169-cv

In the course of reviewing an appeal from a federal district court’s decision brought by Petitioner Steven D. Burdick, the United States Court of Appeals, Second Circuit the issue of  judicial immunity from lawsuit in which Burdick alleged that his constitutional rights were violated by actions of Schroeppel Town Justice Armen J. Nazarian, Oswego, New York and County Court Judge Donald Todd, the Town of Schroeppel, Oswego County, New York* in the course of their presiding over his 2013 state court criminal trial and subsequent appeal.

The Second Circuit addressed the question of judicial immunity from litigation, explaining:

1. Judges acting in their judicial capacity are absolutely immune from suit, even where the plaintiff asserts constitutional violations under §1983, citing Bliven v. Hunt, 579 F.3d 204.

2.  Absolute judicial immunity applies even if the judge allegedly acted in bad faith or with malice. and such judicial immunity can be overcome only if (1) the act is not taken in the judge’s judicial capacity, or (2) the act, “though judicial in nature, [is] taken in the complete absence of all jurisdiction,” citing Mireles v. Waco, 502 U.S. 9.

The challenged acts in this action included typical judicial acts arising out of Burdick’s 2013 criminal conviction and appeal and acts arising out of, or related to, individual cases before the judge are considered judicial in nature.

As the judicial officials named by Burdick had jurisdiction over the criminal conviction and appeal  the district court properly concluded that they were entitled to absolute judicial immunity.

* Burdick also named a criminal defense attorney and the Oswego County Commissioner of Jurors as defendants in the federal action.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/04eb7e6c-155e-4423-ad76-1c182410775b/13/doc/17-1169_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/04eb7e6c-155e-4423-ad76-1c182410775b/13/hilite/

Terminating the Special Counsel

In May 2017 Acting Attorney General Rod J. Rosenstein appointed Robert S. Mueller III, a former Director of the Federal Bureau of Investigation, as Special Counsel pursuant to the authority set out in 28 CFR 600. Mr. Mueller serves at the pleasure of Acting Attorney General.

Periodically there has been speculation in the media concerning possible efforts to terminate the Special Counsel from the position.

With respect to the removal of a Special Counsel, 28 CFR 600.7(d) provides as follows:

(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General [or, in the instant situation, Acting Attorney General Rosenstein or his successor, if any]. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

Subparagraph (d) of Mr. Rosenstein's "ORDER NO. 3915-2017"* to Mr. Mueller setting out the terms and conditions of his appointment as Special Counsel provides that "(d) Sections 600.4 through 600.10 of the Code of Federal Regulations are applicable to the Special Counsel."

Also, 28 CFR 600.9 Notification and reports by the Attorney General, in pertinent part, provides:

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -

            (1) Upon appointing a Special Counsel;

            (2) Upon removing any Special Counsel; 

* ORDER NO. 3915-2017 

APPOINTMENT OF SPECIAL COUNSEL

TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE

2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C. §§509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

            (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; 

and

            (ii) any matters that arose or may arise directly from the investigation; 
and

            (iii) any other matters within the scope of 28 C.F.R. §600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

Date 5/17/17                                   s/Rod J. Rosenstein

                                                          Acting Attorney General

Reassigning a member of the President's Cabinet to another Cabinet position

Reassigning a member of the President's Cabinet to another Cabinet position
Statutory Authority: Article II.2.2 of the Constitution of the United States  

Recently there has been speculation in the media that should the incumbent Attorney General be dismissed or the position otherwise becomes vacant, the President could appoint another member of the Cabinet to the position without having to submit the nomination to the Senate for its advice and consent.

It appears that such an effort would unconstitutional except with respect to a "recess appointment" as was demonstrated during Andrew Jackson's presidency.

Roger B. Taney, then serving as President Jackson's Attorney General [1831-1833] was appointed to, and then continued to serve in a recess appointment as Secretary of the Treasury [1833-1834].

Jackson subsequently nominated Taney to become Secretary of the Treasury, an appointment necessarily to be "by and with the Advice and Consent of the Senate." The Senate, however, did not consent to Taney's nomination.*

This supports the argument that "transferring" a member of the Cabinet to another position in the Cabinet requires "the Advice and Consent of the Senate" unless made as a "recess appointment" and if so made, will ultimately require affirmative action by the Senate for the individual serving pursuant to the authority of the recess appointment to be continued in the office to which he or she has be "transferred."

* Subsequently Taney joined the Supreme Court [March 15, 1836 - October 12, 1864] and served as Chief Justice, succeeding John Marshall.