The role of the courts in our democracy depends on an independent judiciary – judges must be free to make decisions without intimidation, fear of consequences or interference from the government. This is one reason judges have judicial immunity.
The present law is that high court judges, like legislators, effectively have total immunity from legal action, as long as they are acting in their judicial capacity. Associate judges, acting judges and district court judges have the same immunity as high court judges.
Judges enjoy absolute immunity from civil suits for actions done in a judicial capacity, even if done wrongly or with malice. The primary foundation is common law (influenced heavily by English law), confirmed and developed by New Zealand case law.
If a judge performs acts that are purely administrative (not judicial), they may not be protected. The key question is whether the act was done in a judicial capacity.
Judicial immunity does not protect a judge from criminal liability if the judge commits a crime while acting as a judge. However, allegations of criminal misconduct by judges are rare and are handled with particular care.
These principles of judicial immunity have been brought into sharp focus as a result of the arrest of Wisconsin County Court Judge Hannah Dugan on charges of concealing an individual to prevent his discovery and arrest, and obstructing or impeding a proceeding before a department or agency of the United States.
The allegation was that Dugan helped Eduardo Flores-Ruiz avoid arrest. Flores-Ruiz had been unlawfully in the US after being deported in 2013. He appeared in Dugan’s court on domestic violence charges. The judge was aware of the presence of immigration officers outside her courtroom and enabled Flores-Ruiz to leave the court by another exit.
This is not the first time such an action has been taken against a judge. In 2019, federal prosecutors brought a case against Massachusetts judge Shelley Joseph, who was accused of helping an unauthorised immigrant avoid an Immigration and Customs Enforcement agent after a court appearance. The case was dismissed in 2022.
The tension in the US is between one arm of government – the courts and judiciary – and the executive.
An opinion piece by Moira Donegan in The Guardian considers this was a bid by the Trump administration to silence dissent by judges and intimidate critics and opponents, a view echoed by The Atlantic’s Adam Serwer. There is little doubt the issue of judicial immunity will be front and centre as Judge Dugan’s case proceeds.
Judicial immunity is currently being considered in New Zealand in a case before the Supreme Court.
That case is about a person who spent more time in prison than he should have due to an error in a committal warrant prepared by a deputy registrar and signed by a district court judge. The sentencing judge did not notice the error.
The question for the court is whether or not it should overrule a decision delivered in 2011, which held that compensation could not be claimed for a judicial breach of rights. This is because the judge was acting in a judicial capacity in signing the warrant.
But would that judicial capacity extend to managing ingress and egress from a court? One view is that the judge’s power stops at the courtroom door.
Another view is that it is a judicial responsibility, associated with access to justice principles, that a courthouse is open and anybody who wants to come into court to defend themselves or to press a claim against somebody should have free access to the court.
The threat of arrest, as has been the case in the US recently, may have a chilling effect on the willingness of citizens to exercise their rights.
