No.

IN THE

Supreme Court of the United States

SANDRA SUE GRAZZINI-RUCKI, INDIVIDUALLY AND ON
BEHALF OF HER CHILDREN, N.J.R., S.V.R., G.J.R., N.G.R.,
AND G.P.R., AND ALL OTHERS SIMILARLY SITUATED

v.
DAVID KNUTSON, AN INDIVIDUAL; JOHN AND MARY DOES
1-20

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MICHELLE LOWNEY MACDONALD SHIMOTA
Counsel of Record
MacDonald Law Firm, LLC
1069 South Robert Street
West St. Paul, MN 55118
Michelle@MacDonaldLawFirm.com
Telephone: (651) 222-4400
Facsimile: (651) 222-1122

CURRY & TAYLOR ! 202-393-4141

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i
QUESTIONS PRESENTED
This case presents issues of judicial immunity for Dakota
County, Minnesota Judge David Knutson under the Civil
Rights Act of 1871, 42 USC 1983, including one
extraordinary issue of first impression regarding this
Courts Article III jurisdiction to construe Section 1983,
and two additional issues reflecting division among the
circuits regarding the appropriate test to apply when
deciding questions of judicial immunity:
(1) Whether a district court may extend immunity to a
judge accused of violating the Civil Rights Act,
without conducting a historical analysis of immunity
for the functions at 1871 common law as instructed
under Rehberg v. Paulk, 132 S.Ct. 1497 (2012).
(2) Whether a family court judge is immune under Stump
v. Sparkman for the functions of (a) administratively
overriding the case assignment process to assign all
cases relating to a party, including family, criminal,
and third party cases to himself; (b) conducting a
psychological listening session upon a litigants
children, absent any motion or relevance to any issue
before the judge; (c) issuing a stream of stay away
and property control commands and compelling a
family to undergo counseling; and (d) conducting a
trial with the attorney handcuffed in a wheelchair,
and forced to proceed with the clients case, without
files, notes, evidence, eyeglasses, pen, paper or the
litigant? Whether these behaviors, performed by a
family court judge, are judicial acts within the
jurisdiction of a family court under Stump v.
Sparkman.

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ii
(3) Whether this Court possessed jurisdiction under
Article III, of the United States Constitution in
Pierson v. Ray to construe Section 1983 contrary to
its unambiguous language and vividly-recorded
congressional intent, thereby exercising legislative
power vested exclusively in Congress under Article I
of the United States Constitution, and in excess of its
judicial power.

iii

iv

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .............................................................. i
TABLE OF AUTHORITIES............................................................. v
OPINIONS BELOW ......................................................................... 1
JURISDICTION ............................................................................... 1

APPENDIX E:
The March 29, 2013 Order and
Memorandum Sealing Listening Session held
for the sole purpose of facilitating therapy; the
District Court of Minnesota for Dakota County,
case no. 19AVFA-11-1273. ................................................... 67a
APPENDIX F:
Form COL Violation Warning
by Sandra Grazzini-Rucki Denial of Rights
Under Color of Law, 42 USC 1983 --- to (Judge)
David L. Knutson, July 23 , 2013 ....................................... 70a

RELEVANT PROVISIONS INVOLVED ......................................... 2

STATEMENT .................................................................................. 2
REASONS FOR GRANTING THE PETITION................................. 8
CONCLUSION ............................................................................... 39
APPENDIX
APPENDIX A: The March 31, 2015 Opinion of
the United States Court of Appeals for the
Eighth Circuit, Case no. 14-2569 [unpublished] ................. 1a
APPENDIX B:The May 29, 2014 United States
District Court, District of Minnesota,
Memorandum Opinion and Order, Case no. 13-cv2477 is not reported ............................................................... 5a
APPENDIX C: The Grazzini-Rucki Petition for
Rehearing en banc and Petition for Rehearing by
the panel were denied on May 15, 2015 ............................. 42a
APPENDIX D: The December 12, 2013
Affidavit of Attorney Facts that Defendant
David Knutson Usurped Court Files, Improper
Assignments, filed in response to Motion to
Dismiss based on Judicial Immunity, Case no. 13cv-2477 .................................................................................... 44a

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APPENDIX G: Rucki Children on the National

Missing and Exploited Children list, April 19,
2013 ........................................................................................ 72a

vi

TABLE OF AUTHORITIES
Page
CASES
ADAMS V. MCILHANY, 764 F.2D 294 (5TH CIR. 1985)........21, 23
ANTOINE V. BYERS & ANDERSON, INC. 508 U. S.
429 (1993) ........................................................................ PASSIM
ASHELMAN V. POPE, 793 F.2D 1072 (9TH CIR. 1986).............. 23
AUSTIN V. BOREL, 830 F.2D 1356, 1363 (5TH CIR.
1987) ......................................................................................... 25
BABCOCK V. TYLER, 884 F.2D 497, 502-03 (9TH
CIR.1989) ................................................................................. 30
BELTRAN V. SANTA CLARA COUNTY, 514 F.3D 906,
908 (9TH CIR. 2008)................................................................. 30
BRADLEY V. FISHER 80 U.S.335 (1872) ..................................... 8
BREWER V. BLACKWELL, 692 F.2D 387, 396 (5TH
CIR. 1982) ................................................................................ 23
BUCHANAN V. FORD, 638 F. SUPP. 168 (N.D.N.Y.
1986) ......................................................................................... 25
BURNS V. REED, 500 U. S. 478 (1991)..................................10, 11
BUTZ V. ECONOMOU, 438 U. S. 478, 516 (1978)........................ 14
CLEAVINGER V. SAXNER, 474 U. S. 193, 207-08
(1985)........................................................................................ 14
CONCEPCION V. CINTRON, 905 F. SUPP. 57, 61 (D.
P.R. 1995) ................................................................................ 23
CTS CORP. V. WALDERBURGER, 573 U. S. ___, ___
(2014)........................................................................................ 32
CZIKALLA V. MALLOY, 649 F. SUPP. 1212 (D.COLO.
1986) ......................................................................................... 26
D.T.B. V. FARMER, 114 F. APP'X 446, 447 (3D CIR.
2004) ......................................................................................... 29
DOE V. COUNTY OF SUFFOLK, 494 F. SUPP. 179
(E.D.N.Y. 1980) ...................................................................... 25
DOE V. LEBBOS, 348 F.3D 820 (9TH CIR. 2003),
ABROGATED IN BELTRAN V. SANTA CLARA
COUNTY, 514 F.3D 906 (9TH CIR. 2008)................................ 26
DUZYNSKI V. NOSAL, 324 F.2D 924, 929 (7TH CIR.
1963) ......................................................................................... 29

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DYKES V. HOSEMANN, 776 F.2D 942, 946 (11TH CIR.

1985) ......................................................................................... 23
FIGUEROA V. BLACKBURN, 39 F. SUPP. 2D 479, 487
(2D. CIR. 1999)......................................................................... 23
GENTILE V. STATE BAR OF NEVADA, 501 U. S. 1030,
1074 (1991) ............................................................................... 36
GREGORY V. THOMPSON, 500 F.2D 59 (9TH CIR.
1974) ......................................................................................... 20
HARPER V. MERCKLE, 638 F.2D 848, 857 (5TH CIR.
1981) ................................................................................ PASSIM
HOFFMAN V. HARRIS, 511 U. S. 1060 (1994) ........................... 11
HOLLOWAY V. WALKER, 765 F.2D 517, 522 (5TH
CIR. 1985) ................................................................................ 23
IMBLER V. PACHTMAN 424 U. S. 409(1976) .................. 10, 25, 26
JASPERSON V. PUROLATOR COURIER CORP., 765
F.2D 736 (1985)........................................................................ 30
JENSEN V. LANE CNTY., 222 F.3D 570, 577 (9TH CIR.
2000) ......................................................................................... 30
KALINA V. FLETCHER, 522 U. S. 118, 124, N. 11, 132
(1997).............................................................................10, 13, 30
KING V. STATE EDUC. DEP'T, 182 F.3D 162 (2D
CIR.1999) ................................................................................. 27
LOPEZ V. VANDERWATER, 620 F. 2D 1229, 1235-36
(7TH CIR. 1980) ..................................................................15, 17
LYNCH V. JOHNSON, 420 F.2D 818, 820 (6TH CIR.
1970) ....................................................................................15, 20
MALLEY V. BRIGGS 475 U. S. 335, 339-340 (1986) ..........8, 10, 23
MARTINEZ V. ROTH, NO. 94-2206, 1995 WL 261127,
AT *3 (10TH CIR. APR. 26, 1995)............................................ 29
MARTINEZ V. WINNER, 771 F. 2D 424, 434 (10TH
CIR. 1985) .........................................................................6, 8, 12
MCALESTER V. BROWN, 469 F.2D 1280 (5TH
CIR.1972) ..............................................................................9, 19
MCARDLE V. TRONETTI, 961 F.2D 1083, 1085 (3D
CIR. 1992) ................................................................................ 29
MERCKLE V. HARPER, 454 U. S. 816 (1981) ............................ 22
MICHIGAN V. BAY MILLS INDIAN COMMUNITY, 572
U. S. ___, ___ (2014)................................................................ 32

vii

viii

MILLER V. GAMMIE, 335 F.3D 889, 898-900 (9TH CIR.

2003) ......................................................................................... 30
MIRELESS V. WACO, 502 U. S. 9, 13 (1991) .............................. 20
MONROE V. PAPE, 365 U. S. 167, 185-191 (1961)...................9, 33
MORSTAD V. DEP'T OF CORR. AND REHAB., 147
F.3D 741, 744 (8TH CIR. 1998)................................................ 29
MOSES V. PARWATIKAR, M.D., 813 F.2D 891, 892
(8TH CIR. 1987), DISAPPROVED ON OTHER
GROUNDS, BURNS V. REED, 500 U. S. 478, 496
(1991)........................................................................................ 29
MYERS V. MORRIS, 810 F.2D 1437, 1466-67 (8TH CIR.
1987) ......................................................................................... 29
OLAJIDE V. GAFFEY, 2013 U.S. DIST. LEXIS 991,
*5, 2013 WL 57862 (N.D. CAL. JAN. 3, 2013) ....................... 23
P.T., A.T. & H.T. V. RICHARD HALL CMTY.
MENTAL HEALTH CARE CTR., 364 N.J. SUPER.
460, 462 (N.J. SUPER. CT. APP. DIV. 2003) .......................... 29
PATTEN V. GLASER, 771 F.2D 1178, 1179 (8TH CIR.
N.D. 1985)................................................................................ 23
PAVELIC & LEFLORE V. MARVEL
ENTERTAINMENT GROUP, 493 U. S. 120, 123
(1989)........................................................................................ 32
PEOPLE UNITED FOR CHILDREN, INC. V. CITY OF
NEW YORK, 108 F. SUPP. 2D 275, 286 (S.D.N.Y.
2000) ....................................................................................18, 27
PETERSON V. PETERSON, 24 HAW. 239, 246 (1918) ................ 26
PICKING V. PENNSYLVANIA R.R., 151 F.2D 240
(3RD CIR. 1945) ....................................................................... 33
PIERSON V. MEMBERS OF DELAWARE COUNTY,
NO. 99-3435, 2000 WL 486608, AT *4 (E.D. PA.
APRIL 25, 2000)....................................................................... 29
PIERSON V. RAY, 386 U. S. 547 (1967) ...............................8, 9, 31
RANDALL V. BRIGHAM, 74 U. S. 523 (1868)........................27, 28
REHBERG V. PAULK,, 132 S.CT. 1497, 1503-07 (2012)........10, 23
RHEUARK V. SHAW, 628 F.2D 297, 304-05 (5TH
CIR.1980) ................................................................................. 14
SCHEUER V. RHODES, 416 U. S. 232, 249-50 (1974) ................ 11
SEC. & EXCH. COMM'N V. CHENERY CORP., 318 U.

S. 80, 88 (1943) ....................................................................22, 25

SUPREME COURT OF VIRGINIA V. CONSUMERS
UNION OF UNITED STATE 446 U. S. 719, 734-737
(1980).....................................................................................8, 13
TENNEY V. BRANDHOVE 341 U. S. 367 (1951) .....................8, 35
TENTH (LERWILL V. JOSLIN, 712 F.2D 435, 439
(10TH CIR. 1983) ..................................................................... 23
THOMASON V. SCAN VOLUNTEER SERVS., INC., 85
F.3D 1365, 1373 (8TH CIR. 1996)............................................ 25
TROXEL V. GRANVILLE, 530 US 57, 65 (2000)......................... 18
TURNEY V. O'TOOLE, 898 F.2D 1470, 1474 (10TH
CIR. 1990) ................................................................................ 29
UNITED STATES V. LANIER, 520 U. S. 259, 266
(1997) (PER CURIAM).............................................................. 33
UNITED STATES V. MORRISON, 529 U. S. 598, 621
(2000)........................................................................................ 36
WILLIAM B. CASHION NEV. SPENDTHRIFT TRUST
V. VANCE, 552 FED. APPX. 884, 886 (11TH CIR.
2014) ......................................................................................... 23
WILLIAMS V. CONSOVOY, 333 F. SUPP. 2D 297, 302
(D.N.J. 2004) ........................................................................... 29
WYATT V. COLE, 504 US 158, 163 (1992) ...............................9, 31

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STATUTES
18 U.S.C. 242 ............................................................................ 33
20 U.S.C. 76cc........................................................................... 15
28 U.S.C. 1254(1)........................................................................ 1
28 U.S.C. 1291 ............................................................................ 1
28 U.S.C. 1331 ........................................................................... 1
42 U.S.C. 1983 .................................................................... 1, 2, 9
Minn. Stat. 148.88 ....................................................................... 24
Minn. Stat. 484.1 ........................................................................ 5
Minn. Stat. 518 ............................................................................ 27
Minn. Stat. 518.17 subds.1-2..................................................... 6
The Federalist No. 78 (1788)..................................................... 32

ix
RULES
Supreme Court Rule 10(a) .................................................. 12, 16
Supreme Court Rule 10(c)......................................................... 13
OTHER AUTHORITIES
J. Feinman, R. Cohen, Suing Judges: History and
Theory, 31 S. C. L. Rev. 201, 243-249, 254-56
(1979)........................................................................................ 37
Liability of Judicial Officers Under Section 1983, 79
YALE L.J. 322, 327-328 (1969)............................................. 33
M. Johns, A Black Robe Is Not A Big Tent: The
Improper Expansion Of Absolute Judicial
Immunity To Non-Judges In Civil-Rights Cases,
59 SMU L.Rev. 265, 276 ........................................................ 26
N. Blake, The Road To Reno, A History of Divorce
in the United States 56 (1962)............................................... 26

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1
OPINIONS BELOW

2
RELEVANT PROVISIONS INVOLVED

The March 31, 2015 Opinion of the United States Court

of Appeals for the Eighth Circuit, Case no. 14-2569
attached as Appendix A, page 1a is [unpublished]. The
May 29, 2014 United States District Court, District of
Minnesota, Memorandum Opinion and Order, Case no.
13-cv-2477 granting Defendants Motion to Dismiss
Grazzini-Rucki Amended Complaint on the basis of
judicial immunity is not reported and is attached as
Appendix B, page 5a. The Grazzini-Rucki Petitions for
Rehearing en banc and for Rehearing by the panel were
denied on May 15, 2015, United States Court of Appeals
for the Eighth Circuit, Case no. 14-2569 attached as
Appendix C, page 42a

Article I 1 of the United States Constitution

provides: All legislative powers herein granted
shall be vested in a Congress of the United
States, which shall consist of a Senate and
House of Representatives.

JURISDICTION

Title 42 U. S.C. 1983 provides in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in an
action at law . . .

This Court has jurisdiction under 28 U.S.C.

1254(1) for a petition for a writ of certiorari in a civil
case after rendition of a judgment or decree of a court
of appeal. A judgment of the United States Court of
Appeals for the Eighth Circuit was entered on March
31, 2015. Petitions for rehearing en banc and rehearing
by the panel were denied on May 15, 2015.
The United States District Court for the District of
Minnesota had jurisdiction under 28 U.S.C. 1331
(federal question) and 1343(a)(3) (civil rights) for claims
under 42 U.S.C. 1983, 1985, 1986, and 1988. The
United States Court of Appeals for the Eighth circuit
had jurisdiction over the district courts May 29, 2014
final judgment under 28 U.S.C. 1291.

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Article III 1, 2 of the United States

Constitution provide in relevant part: The
judicial power of the United States, shall be
vested in one Supreme Court . . . . The judicial
power shall extend to all cases, in law and
equity, arising under this Constitution, [and]
the laws of the United States . . . .

STATEMENT
This petition arises from a suit in the United States
District Court for the District of Minnesota under 42
U.S.C. 1983 and state-law claims brought by
Plaintiffs-Petitioners,
Sandra
Grazzini-Rucki,
individually and on behalf of her minor children against
Defendant-Respondent, David L. Knutson, a judge of
the Dakota County, Minnesota District Court. Judge

3
Knutson presided over matters involving GrazziniRucki, subsequent to Petitioners May 12, 2011
Stipulated Judgment and Decree. App. 6a-7a. After the
Decree was entered, Petitioners ex-husband David
Rucki changed his mind, moving to set aside the
Decree, alleging he was tricked into settling. App.7a.
Judge Knutson thereafter assigned himself to vacate
the Decreeforcing the parties back to court. App. 9a.
Judge Knutson instructed Judicial District Deputy
Administrator Susan J. Reichenbach to assign him to
all court proceedings of any type involving the
parties, even future cases involving third parties, and
even criminal matters. App. 8a, 44a-66a. He thereafter
proceeded to issue over 3,400 directives to regulate this
family including stay away orders separating the
children from both parents, kicking the mother out of
the home, ordering psychological examinations of
family members, and requiring custody evaluations and
therapy for the entire family without any trial or
finding of abuse. App. 10a-15a, 22a-24a. Judge Knutson
command the children to attend what he called a
listening session which he admitted was for the sole
purpose of facilitating therapy. . . This session was not
pursuant to any motion or issue under consideration at
the time. App. 3a, 67a-69a. At the listening session,
Judge Knutson threatened the children. App. 21a-25a.
Two of the children ran away. App. 72a Grazzini-Rucki
and the children sued Judge Knutson alleging
deprivation by:
(a) Judge Knutsons bypassing standard case
assignment procedure to assign all pre-existing
and future hearings relating to Grazzini-Rucki to
himself;
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(b) Conducting the illegal listening session for

the sole purpose of psychotherapy;
(c) Making the stream of illegal stay-away,
property control, and therapy commands; and
(d) After the filing of this lawsuit, causing
Petitioners counsel to be (i) arrested without
probable cause during a recess in a custody trial;
(ii) held in courthouse detention (iii) returned to
the courtroom in a wheelchair while handcuffed
to a waist belt (iv) forced to try Petitioners case
in such restraints, and without eyeglasses, files,
pen or paper with threat of default; and (v)
without Petitioner present.
App. 22a-24a, 63a,64a.
2. Judge Knutson moved to dismiss under Rule
12(b)(6), asserting the affirmative defense of absolute
immunity. Petitioner asserted these were not judicial
acts and that Judge Knutson offeredand the district
court undertookno historical analysis of whether the
accused functions were immune at 1871 common law.
The district found Knutson to be immune, construing
Stump v. Sparkman, Mireless v. Waco, Forrester v.
White, and Pierson v. Ray (App. 39a-40a) to extend
immunity for all accused behavior, reasoning:
Plaintiff contests Judge Knutsons case
management, his signing of orders, the
substance of his orders, and the trial proceedings
on September 12, 2013. All of these actions,
however, were taken in Judge Knutsons judicial
capacity.

5
The district courts conclusion was based on the
following findings:
(a) Judge Knutson has not interacted with
Plaintiff outside of his courtroom or his judicial
chambers and
(b) [T]he underlying family law case was within
Judge Knutsons jurisdictional authority under
MINN. STAT. 484.1 (state district courts have
original jurisdiction in all civil actions within
their respective districts).
App. 40a. The district court entered a Final Opinion
and Order on May 29, 2014.
Grazzini-Rucki appealed the finding of immunity,
arguing (1) Judge Knutson failed to carry his burden of
proving 1871 common law extended an absolute
immunity to the accused functions; (2) the (a)
administrative case assignment, (b) psychotherapeutic
listening session, (c) stay away and property control
orders, and (d) arrest and conducting of trial with her
attorney in shackles could not be immune under any
construction of immunity doctrine; and (3) Pierson v.
Ray was an unconstitutional exercise of legislative
powers vested solely to Congress under Article I of the
United States Constitution. Opening Brief, Sept.25,
2014, Response & Reply Brief,March 4, 2015, Case no.
14-2569.
4. The court of appeals affirmed the dismissal
stating:

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6
(a) Judge Knutsons self-assignment of
related matters was a judicial act because it is
still a judicial function in the sense that it
directly concerns the case-deciding process,
citing out-of-circuit authority of Martinez v.
Winner, 771 F. 2d 424, 434 (10th Cir. 1985),
vacated as moot after remand, 800 F.2d. 230 (10th
Cir. 1986).
(b) the psychotherapeutic listening
session was a judicial act because:
(i) The listening session was held at the
courthouse;
(ii) . . . attended by the parties, the
attorneys, the guardian ad litem,
and
the
therapist;
and
(iii) . . . was recorded by a court
reporter.
The court reasoned that Minnesotas custody laws are
so flexible that the listening session was a function
normally performed by a judge in deciding custody
disputes. . . App. 4a. (citing Minn. Stat. 518.17
subds.1-2 establishing best interests standard for
determining custody). Judge Knutson in his order
characterized it as a non-judicial act himself. The court
disregarded Judge Knutsons admission that the
listening session was held for the sole purpose of
facilitating therapy previously ordered by the Court,
concluding that Judge Knutsons characterization does
not require the conclusion that the listening session was
something other than a judicial act. App. 3a
The court of appeals ignored both (c) movement
and property control orders and (d) conducting a child

7
custody trial without Grazzini-Rucki present, and while
her attorney was in handcuffs.
5. Grazzini-Rucki petitioned for rehearing and
hearing en banc, arguing:
(1) The panel failed to address Grazzini-Ruckis
argument that neither Judge Knutson nor the
district court conducted historical analysis of
immunity at 1871 common law for the four
accused functions;
(2) The panel (a) applied a four-factor immunity
test from the Fifth Circuit rather than Stumps
(controlling) two-factor test, (b) confused the
within the jurisdiction prong with the
ordinarily performed by a judge prong from
Stump, and (c) failed to address the stay-away
orders and shackling of counsel behavior;
(3) The panel applied mooted authority of
Martinez inconsistent with this Courts
precedent; and
(4) Pierson v. Ray was an unconstitutional
exercise of Article I authority by this Court, in
excess of the judicial power vested under Article
III.
6. The Eighth
petitions for rehearing.

Circuit

denied

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both

8
REASONS FOR GRANTING THE PETITION
In Pierson v. Ray, 386 U. S. 547 (1967) this Court
construed Section 1983 of the Civil Rights Act of 1871
contrary to its unambiguous language and vividlyrecorded congressional intent, wrongly analogizing the
legislative speech and debate liberty from Tenney v.
Brandhove 341 U. S. 367 (1951) to the sovereign judicial
function. Contradicting the unambiguous statute and
clear congressional record, the Court presumed that
congress did not intend Section 1983 to abrogate
immunity of state judges to common law torts which
existed under nineteenth century English common law,
as recited in Bradley v. Fisher 80 U.S.335 (1872).
Following this presumption, this Court has instructed:
Our initial inquiry is whether an official claiming
immunity under 1983 can point to a common-law
counterpart to the privilege he asserts. Malley v.
Briggs 475 U. S. 335, 339-340 (1986).
The Eighth Circuit failed to conduct this initial
inquiry, instead construing the doctrine of judicial
immunity contrary Stump v. Sparkman 475 U. S. 335,
339-340 (1986). The court extended immunity to Judge
Knutsons administrative case assignment function
under authority from the Tenth Circuit, Martinez v.
Winner, 771 F.2d 424, 434 (10th Cir. 1985), which was
mooted in Martinez v. Winner, 800 F.2d 230, 231
(10th Cir. 1986), that is directly contrary to Ex parte
Virginia 100 U. S. 339, 228 (1879); Supreme Court of
Virginia v. Consumers Union of United State 446 U. S.
719, 734-737 (1980); and Antoine v. Byers & Anderson,
Inc. 508 U. S. 429 (1993).

10

It also extended immunity to Judge Knutsons

psycho-therapeutic function under a test from the Fifth
Circuit, McAlester v. Brown, 469 F.2d 1280 (5th
Cir.1972), a case that was abrogated in Stump. The
court refused to analyze Judge Knutsons property
control and therapy commands and the shackling of
counsel.

immunity, which Chief Justice Warren believed was

well-settled at 1871 common law. Pierson at 554-555.

Yet even if properly construed, absolute immunity

is
an
unconstitutional
abominationregularly
depriving millions of United States citizens the
fundamental right of remedy for constitutional injury
by judicial wrongdoing. The incontrovertible record
demonstrates that the 1871 Congress enacted Section
1983 specifically to abrogate this insult to justice. This
Courts decision resurrecting it in Pierson v. Ray was
an
impermissibleindeed
recklessexercise
of
exclusive congressional authority.
I.
THE LOWER COURTS HAVE FAILED TO REQUIRE
THE OFFICIAL CLAIMING ABSOLUTE IMMUNITY TO
PROVE A COMMON LAW ANALOG TO ACCUSED FUNCTION
Section 1983 unambiguously regulates every
person acting under color of state law. 42 U.S.C.
1983.
The vivid record of congressional debates
preceding the Civil Rights Acts of 1866 and 1871
demonstrates Congress intended person to include
judges. See, e.g., Monroe v. Pape, 365 U. S. 167, 185-191
(1961); Pierson v. Ray, 386 U. S. 547, 559 (1967)
(Douglas, J., dissenting); Wyatt v. Cole, 504 US 158, 163
(1992).
Circumventing
traditional
statutory
interpretation, this Court in Pierson presumed that
despite the statutes facial clarity and vivid recorded
debate, Congress intended to incorporate a judicial
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Following this presumption, this Court has

instructed lower courts to evaluate an officials claim to
an immunity by examining English and American
common law to determine whetheras of 1871an
official performing the accused function enjoyed
immunity. See, e.g., Malley v. Briggs, 475 U. S. 335,
339-340 (1986) (Our initial inquiry is whether an official
claiming immunity under 1983 can point to a commonlaw counterpart to the privilege he asserts.); Imbler v.
Pachtman, 424 U. S. 409, 423 n.20 (1976); Burns v.
Reed, 500 U. S. 478 (1991) (Scalia, J., concurring in
judgment in part and dissenting in part) ([w]here we
have found that a tradition of absolute immunity did not
exist as of 1871, we have refused to grant such
immunity under 1983.). The Court has for that
reason been quite sparing in recognizing absolute
immunity for state actors. Burns at 486-87.
A.
The Lower Courts Failed To Make
Findings That The Accused Functions
Existed, And Were Immune, As Of 1871
This Court has instructed that lower courts
analyzing an officials immunity defense must examine
nineteenth century social and legal systems to
determine whether the accused function was then
immune. See, e.g., Rehberg v. Paulk,, 132 S.Ct. 1497,
1503-07 (2012) (examining nineteenth century caselaw);
Kalina v. Fletcher, 522 U. S. 118, 124, n. 11, 132 (1997)
(Scalia, J., Thomas, J., concurring) (examining 17th and
18th century caselaw); Antoine v. Byers & Anderson,
Inc., 508 U. S. 429, 432 (1993) (examining treatises and

11

12

scholarly publications describing history of court

reporting).

The widespread failure among the circuits to

conduct the threshold inquiry of the historical
foundations for a governmental immunity as of 1871
warrants supervisory review under Supreme Court
Rule 10(a) and both conflict and error review under
Rule 10(c).

As noted by Justices Thomas and Scalia, dissenting

from denial of certiorari in Hoffman v. Harris, 511 U. S.
1060 (1994), this historical inquiry is fundamental, yet
ignored among the circuits:
The courts that have accorded absolute immunity . . .
appear to have overlooked the necessary historical
inquiry; none has seriously considered whether social
workers enjoyed absolute immunity for their official
duties in 1871. If they did not, absolute immunity is
unavailable to social workers under 1983. This all
assumes, of course, that "social workers" (at least as
we now understand the term) even existed in 1871. If
that assumption is false, the argument for granting
absolute immunity becomes (at least) more difficult
to maintain.
Id. (slip op. at 5); see also Antoine v. Byers &
Anderson, Inc., 508 U. S. 429 (1993) (denying court
reporter absolute immunity because reporting began
after 1871).
Extending an immunity absent this
foundation is error. Scheuer v. Rhodes, 416 U. S. 232,
249-50 (1974) (These cases, in their present posture,
present no occasion for a definitive exploration of the
scope of immunity . . . .). The judge bears the burden
of proof. Burns v. Reed, 500 U. S. 478, 486487 (1991).
Judge Knutson failed to proffer, and the district
court and court of appeals failed to conduct this
threshold inquiry for any of the four accused functions.
Absent this required threshold showing, Judge
Knutson is not entitled to immunity.
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II. THE COURT OF APPEALS MISCONSTRUED STUMP V.

SPARKMAN, WHEN IT EXTENDED ABSOLUTE IMMUNITY
TO FUNCTIONS THAT CANNOT BE IMMUNE
A.

Case-Assignment is Not Judicial

In extending immunity to Judge Knutsons

improper
assignments,
override
of
Deputy
Administrator Susan J. Reichenbach case assignment
function, and usurping case files involving GrazziniRucki, or her former husband, the court of appeals
cited, but failed to apply Stump, instead diverting to a
test from the Tenth Circuit case of Martinez v. Winner,
771 F.2d 424, 434 (10th Cir. 1985), mooted in Martinez
v. Winner, 800 F.2d 230, 231 (10th Cir. 1986). Martinez
is inconsistent with Stump.
Stump held:
[T]he factors determining whether an act by a
judge is a "judicial" one relate to the nature of
the act itself, i.e., whether it is a function
normally performed by a judge, and to the
expectations of the parties, i.e., whether they
dealt with the judge in his judicial capacity.
Stump at 362.

13

14

Judges dont normally assign cases, participate in

childrens therapy sessions, or carry on custody trials
without the parent, and while the parents attorney is
in handcuffs. The court of appeals cited Stump, but
failed to examine whether case assignment is (i)
normally performed by a judge and (ii) within the
expectations of the parties. It instead asserted
rationale used in Martinezthat Judge Knutsons case
assignment was judicial because it directly concerns
the case-deciding process. Martinez at 434; App. 3a.
The failure to analyze under Stump is error reviewable
under Supreme Court Rule 10(c).

In Martinez the Tenth Circuit held Chief Judge

Winners self-assignment of a case was judicial (a) in
the sense that it directly concerns the case-deciding
process and (b) by statute it is the responsibility of
the chief judge. Martinez at 434 (citing Rheuark v.
Shaw, 628 F.2d 297, 304-05 (5th Cir.1980)). Martinez
reasoned an act may be administrative or ministerial
for some purposes and still be a "judicial" act for
purposes of immunity from liability for damages.
Martinez at 434. Though both Martinez and Rheuark
cite Stump, they construe that test incorrectly.

1.
Martinez was Mooted and is
Inconsistent with Generations of This
Courts Precedent
In extending immunity under Martinez, the court
of appeals erred under this Courts precedents holding
that judicial officers performing executive functions are
not immune. See, e.g, Ex parte Virginia, 100 U. S. 339,
228 (1879) ([a]dministrative decisions, even though
they may be essential to the very functioning of the
courts, have not...been regarded as judicial acts.);
Supreme Court of Virginia v. Consumers Union of
United States, 446 U. S. 719, 734-737 (1980) (refusing to
extend immunity to behavior promulgating a code of
conduct for attorneys because it was not an act of
adjudication but one of rulemaking.); Antoine v. Byers
& Anderson, Inc., 508 U. S. 429, 435 (1993) (finding
court reporters part of judicial function yet not
absolutely immune); Kalina v. Fletcher, 522 U. S. 118
(1997) (reasoning prosecutors investigation concerns
adjudication but not judicial).

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(a) This Court has never held that a given function

may be both judicial and administrative. Indeed, the
Court has for generations held the oppositethat
judicial officers performing non-judicial functions are
not entitled to absolute immunity even if the function
concerns the case-deciding
Apologists for absolute immunity claim the
injustices it imposes are checked by adversarial
process, restraint by principles of law, and vulnerability
to appellate review. See, e.g., Cleavinger v. Saxner, 474
U. S. 193, 207-08 (1985) (refusing to grant prisondiscipline committee absolute immunity because lack of
procedural safeguards); Butz v. Economou, 438 U. S.
478, 516 (1978) (granting administrative law judges
absolute immunity because procedural safeguards were
comparable to judicial process). But Judge Knutsons
override of the Deputy Administrator to assign himself
to all past and future cases is not reviewable, not a
resolution of a dispute, and not subject to principles of
lawbut a ministerial rule.

15

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Other circuits recognize that a judge performing

executive functions cannot be immune under either
Stump or Imbler. See, e.g., Lopez v. Vanderwater, 620
F. 2d 1229, 1235-36 (7th Cir. 1980) (declining immunity to
judge performing prosecutorial function); Harper v.
Merckle, 638 F.2d 848, 857 (5th Cir. 1981) (declining
immunity to judge acting as as complaining witness,
prosecutor, factfinder, and judge.). The fact that a
judge is authorized to also function as an administrator
does not convert the administrator function into a
judicial one. See Lynch v. Johnson, 420 F.2d 818, 820
(6th Cir. 1970) (cited favorably in Stump at 370 n. 10) ("A
judge does not cease to be a judge when he undertakes
to chair a PTA meeting, but, of course, he does not
bring judicial immunity to that forum, either.").

of the actor who performed it. Buckley at 269. The

mere fact that an officer claiming immunity is a judge is
insufficient to accomplish absolute immunity. Rather,
absolute immunity depends on whether the accused
function was absolutely immune as of 1871. Stump at
362; Malley at 339-40.

(b) Further, the existence of statutory

responsibility is not dispositive of the judicial in
nature issue. Statutes may grant judges a variety of
non-judicial decision-making authority.
A simple
example is that Chief Justice Roberts is authorized
under 20 U.S.C. 76cc to serve as the Chancellor of the
Board of Regents of the Smithsonian Institution. Such
authorization does not convert Chief Justice Roberts
governance into a judicial act.
Further, even under Martinez Judge Knutson
could not be immune because, unlike Judge Winner, he
is not a Chief Judge and has no oversight authority
over Deputy Administrators. Martinez at 434.
(c) Finally, the court of appeals failed to observe
the distinction between Judge Knutsons status as a
judge and the functions accused. Courts must examine
the nature of the function performed, not the identity
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The Fifth, Eighth, and Tenth Circuits construction

and analysis under Stump to extend immunity to
administrative case assignment under Martinez and
Rheuark is error subject to review in this Court under
Supreme Court Rules 10(a) and (c).
2.
Properly Construing Stump, the
Court of Appeals Would Have Found No
Immunity
Would the court of appeals have applied Stump, it
would have found Judge Knutson was not immune:
Usurping court files by overriding Deputy
Administrator Reichenbachs case assignment process
is not (a) normally performed by a judge and (b)
within the expectations of the parties.
(a) Judge Knutson took the unusual step of
commanding Judicial District Deputy Administrator
Reichenbach to assign him to the divorce and order for
protection cases related to the family, and then made
orders assigning himself to all court proceedings of any
type involving Sandra Grazzini-Rucki and David
Rucki. App. 54a.
These included David Ruckis
criminal cases, and cases involving third parties. App.
8a, 48a-63a. A judge usurping all pending and any
future cases to himself is not normally performed by a
judge case assignment is always random and

17

18

performed by Judicial District Administrators. App.

46a

United for Children, Inc. v. City of New York, 108 F.

Supp. 2d 275, 286 (S.D.N.Y. 2000) (holding family court
is not a court of competent jurisdiction for RookerFeldman analysis because of weak procedural and
constitutional protections); Troxel v. Granville, 530 US
57, 65 (2000) (describing parental rights as perhaps the
oldest of the fundamental liberty interests recognized
by this Court.).

(b) Nor can any officers case assignment be within

the expectations of the parties because assignment
occurs before a judge is assigned a case, and long before
the parties have any expectation about a judge acting.
Certainly Judge Knutson presented no evidence that
Petitioner had any such expectation of such. In fact,
Petitioners expectations were the oppositeunder
Minnesota rules, any party can remove a Judge by
notice within 10 days after the party receives notice
of which Judge is to preside over the case. Judge
Knutsons
administrative
override
eviscerated
Petitioners right to removal.
3.
The Fifth, Eighth, and Tenth
Circuits Improperly Apply Imblers
Intimately Associated Test
Citing Martinez, the court of appeals extended
immunity because Judge Knutsons override directly
concerns the case-deciding process. This test
resembles Imblers intimately associated with the
judicial phase of the criminal process. Imbler at 430.
However, Imblers test does not apply to judges (see,
e.g., Lopez, supra) and there is no prosecutorial function
or criminal process in family court. Obviously cases
are assigned by a court administrator before the
judicial phase begins. Minnesota family court judges,
guardians, and psychologists exercise nearly unfettered
discretion under weak procedural restriction despite
that family courts adjudicate fundamental rights
including speech, association, conscience, movement,
and property ownership and control. See, e.g., People
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The Eighth, Fifth, and Tenth Circuits incorrect

application of Imbler to extend immunity to judges
performing administrative case assignment warrants
exercise of the Courts supervisory and conflict
resolution jurisdiction under Rules 10(a) and (c).
B.
Psychotherapeutic Function Is Not
Judicial
The court of appeals extended absolute immunity
to Judge Knutson for participating in what he himself
described as a listening session with the GrazziniRucki children for the sole purpose of facilitating
therapy. . . This session was not pursuant to any
motion or issue under consideration at the time.
App. 3a-4a. Though he threatened and coerced the
children, his behaviorby his own admissionwas
irrelevant to any issue and was not adjudication, but
psychotherapy.
Neither lower court made findings required under
Stump regarding (a) whether psychotherapy was a
function normally performed by a judge (at 1871
common law) and (b) the expectation of the parties.
The court of appeals further erred in finding that
psychotherapy is judicial because the session was (a)

19

20

held at the courthouse; (b) . . . attended by the

parties, the attorneys, the guardian ad litem, and the
therapist; and (c) . . . was recorded by a court
reporter. App. 3a-4a. These facts are not relevant
under Stump.

In Stump, Justice White recited, then rejected

McAlesters focus on location of the act being in
chambers relating to a pending case, and during a
visit to a judge. Stump at 361-2. In rejecting
McAlesters test Justice White favorably cited a Ninth
Circuit decision, Gregory v. Thompson, 500 F.2d 59 (9th
Cir. 1974) which rejected immunity for a judge who
physically evicted a litigant from chambers during a
visit to a judge and relating to a pending case. Stump
at 370, n. 10. He also analyzed Lynch v. Johnson, 420
F.2d 818 (6th Cir. 1970) which similarly held that a
county judge forcibly removing a man from a fiscal
court was not immune. Id. at 820. Clearly Justice
White cited Gregory and Lynch to reject McAlester and
to emphasize that even if a judge acts in chambers, or
relating to a confrontation or pending case, the
judges behavior may not be judicial in nature. See
also Harper v. Merckle, 638 F.2d 848, 857 (5th Cir.
1981), cert. denied 454 U. S. 816 (1981) (deciding child
support enforcement proceeding inside of courtroom,
by a judge, and recorded by reporter not immune);
Mireless v. Waco, 502 U. S. 9, 13 (1991) (deciding
physical assault by a judge outside of courtroom
immune).

1.
The Court of Appeals Cited Stump,
but Applied the Abrogated Fifth Circuit
Test from McAlester v. Brown
The court of appeals focused on the location of the
session, attendance by parties, and recordation. App.
3a-4a. These are not relevant under Stump, but may be
relevant under a test originating in the Fifth Circuit
McAlester v. Brown, 469 F.2d 1280 (5th Cir.1972)a
test that was abrogated in Stump at p. 361, yet today
somehow thrives within the circuits, requiring the
Courts supervisory and conflict resolution jurisdiction
under Rules 10(a) and (c).
Stump settled cacophony among the circuits
extending immunity inconsistently. Stump at 360-363
and n.10. Justice White cast aside considerable debris
among the circuits, including McAlester, the leading
immunity case from the Fifth Circuit. See Harper v.
Merckle, 638 F.2d 848, 857 (5th Cir. 1981), cert. denied
454 U. S. 816 (1981). McAlesters test found an act
judicial in nature based on four factors: (1) the
precise act complained of . . . is a normal judicial
function; (2) the events involved occurred in the judge's
chambers; (3) the controversy centered around a case
then-pending before the judge; and (4) the
confrontation arose directly and immediately out of a
visit to the judge in his official capacity. McAlester at
1282 (analyzed in Stump at 361).
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Stump itself undermines the court of appeals

reliance on attended by the parties. Plaintiff Linda
Sparkman was absent from and deceived of her
mothers petition to sterilize her: Linda [Sparkman]
entered the DeKalb Memorial Hospital, having been
told that she was to have her appendix removed. The
following day a tubal ligation was performed upon her.
She was released several days later, unaware of the
true nature of her surgery.).

21

22

Yet, despite rejection in Stump, the court of

appeals applied McAlesters testexclusively focusing
on location, attended by parties, and relationship to a
pending case. The lower courts application of the
wrong test warrants review under Rule 10(c).

and questioned him as complaining witness,

prosecutor, factfinder, and judge in a contempt
proceeding of sorts. Harper at 852. The hearing was
recorded, related to a pending child support case, in the
courtroom.
Id. Judge Merckle found Harper in
contempt, and three days later released. The contempt
conviction was reversed on appeal, and Harper sued
Judge Merckle. Id. at 854.

2.
The Circuits Have Consistently
Mis-Construed Stump
McAlesters persistence despite abrogation in
Stump follows an aberration occurring in the Fifth
Circuit case of Adams v. McIlhany, 764 F.2d 294 (5th
Cir. 1985). Seven years after Stump, the Fifth Circuit
in Adams refused to recognize Stumps abrogation of
McAlesters four factors. As if the Supreme Court were
a sister circuit, the Fifth Circuit cited Stump, then
turned its back on it. Id. at 297 (The four factors
generally relied upon by this circuit . . . .) (emphasis
added).
Adams proceeded to analyze under
McAlesters test rather than Stump, erroneously
relying on the four-factor test debris cast aside by
Justice White. Adams at 297.
Adams misperceived McAlesters vitality because
of a peculiar outcome in the case of Harper v. Merckle,
638 F.2d 848, 857 (5th Cir. 1981). In Harper, the Fifth
Circuit determined that Judge Merckle was not
immune for falsely arresting Harper, a man who had
attempted to make a spousal support payment directly
to the judge in the judges chambers. The judge
attempted to place Harper under oath to learn his
address, whereupon Harper fled.
Judge Merckle
ordered bailiffs to chase. They shortly captured and
returned Harper to Judge Merckles chambers
whereupon Judge Merckle placed Harper under oath
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In analyzing immunity the Fifth Circuit cited both

McAlester and Stump as the guiding lights in our
analysis. Id. at 859. Yet the court ignored Stump and
analyzed judicial act only under McAlesters fourfactor test, finding Judge Merckles behavior did not
satisfy all four factors. Harper at 858-59.
Judge
Merckle appealed to this Court, which denied certiorari.
Merckle v. Harper, 454 U. S. 816 (1981).
Four years later Adams cited the denial of
certiorari in Harper as indicia of vitality of McAlesters
four factor test. The deduction is error. Though
Harper cites McAlester and Sparkman as two guiding
lights, Harper reached result consistent with both
McAlesters (abrogated) four-factor test as well as
Stumps (controlling) two-factor authority. Harpers
result was thus correct, but by means of faulty analysis
that resurrected McAlesters test to equal to Stumps,
making this Courts denial of certiorari on result
proper. See Sec. & Exch. Comm'n v. Chenery Corp.,
318 U. S. 80, 88 (1943).
The Fifth Circuits resurrection of McAlester has
been perpetuated among many circuits, including the

23
1

24
4

First, Second, Fifth, Eighth, Ninth, Eleventh, and

of course the court of appeals below.7
The widespread perpetuation of the Fifth Circuits
refusal to align with Stump warrants exercise of this
Courts supervisory and conflict jurisdiction under
Rules 10(a) and (c).

Concepcion v. Cintron, 905 F. Supp. 57, 61 (D. P.R. 1995).

Figueroa v. Blackburn, 39 F. Supp. 2d 479, 487 (2d. Cir. 1999).
3
Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985); Brewer v.
Blackwell, 692 F.2d 387, 396 (5th Cir. 1982).
4
Patten v. Glaser, 771 F.2d 1178, 1179 (8th Cir. N.D. 1985).
5
Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (applying
Dykes, infra.); Olajide v. Gaffey, 2013 U.S. Dist. LEXIS 991, *5,
2013 WL 57862 (N.D. Cal. Jan. 3, 2013).
6
Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) (reading
Harper as focused on McAlesters test, thereby perpetuating
McAlesters four factor test at Stumps expense); William B.
Cashion Nev. Spendthrift Trust v. Vance, 552 Fed. Appx. 884, 886
(11th Cir. 2014).
7 The circuits have also perpetuated the Fifth Circuits
erroneous pro-immunity policy (see McAlester at 1282-83) in
defiance of the Courts condemnation of freewheeling policy
analysis from Malley v. Briggs, 475 U. S. 335, 339-340 (1986)
through Rehberg v. Paulk,, 132 S.Ct. 1497, 1503-07 (2012). Circuits
applying a freewheeling policy include at least the Fifth (Adams
v. McIlhany, 764 F.2d 294, 297-98 (5th Cir. 1985); Holloway v.
Walker, 765 F.2d 517, 522 (5th Cir. 1985) (freewheeling policy to
immunize judge conspiring to plunder a corporation)); Ninth
(Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986)); Tenth
(Lerwill v. Joslin, 712 F.2d 435, 439 (10th Cir. 1983)); and Eleventh
(Dykes v. Hosemann, 776 F.2d 942, 945 (11th Cir. 1985)).
2

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3.

Psychotherapy Is Not Judicial

Function Today or in 1871

If the court of appeals would have applied Stumps

judicial in nature test, it would have been apparent
that in a listening session is neither a function
normally performed by a judge nor within the
expectations of the parties.
Judge Knutson
affirmatively stated his purpose was solely to
facilitate psychotherapy. App. 3a. Psychotherapy is
not normally performed by a judgein Minnesota it
may be legally performed only by licensed
psychologists.8 Independent investigation is forbidden
to judges. Model Code of Judicial Conduct Cannon
3(B)(7) cmt. (1990).
There is no evidence the parties expected that
Judge Knutson was functioning in any way other than
he claimedfacilitating ongoing psychotherapy. Most
importantly, the parties certainly did not expect
Judge Knutson to threaten the children that they would
follow his commands or be punished, causing them fear,
and to run away days later.
i. The district court and the court of appeals
diverted from necessary historical investigation to
determine whether psychologists even existed in
1871, instead drawing analogy between the listening
session and a best interests of the child
determination. App. 4a, 39a. They wrongly concluded
that a best interests determination is a function
normally performed by a judge in deciding custody

Minn. Stat. 148.88, Psychology Practice Act.

25

26

disputes. . . and therefore, by analogy, so was the

listening session. Id.

circuits have extended

inconsistently. Id. 14

immunity

by

analogy

Yet this Court has disapproved of such immunity

by analogy. As noted by Justices Thomas and Scalia in
Hoffman, this immunity by analogy tactic does not
satisfy the requirement to examine 1871 common law.
See Hoffman at slip op. 5-6 (reciting Imbler v.
Pachtman 424 U. S. 409(1976) as holding prosecutors
are entitled to immunity for functions intimately
associated with the judicial phase of the criminal
process) (emphasis by Justice Thomas). Justices
Thomas and Scalia criticized these courts for ignoring
the important threshold question whether social
workers are, under any circumstances, entitled to
absolute immunity.

ii. The court of appeals failed to identify a best

interests functions of a family court existing at 1871
common law because in 1871 no civil judicial tribunal
possessed jurisdiction over divorce or child custody.
It is elementary that in the early history of
jurisprudence in England the common law courts
exercised no jurisdiction over divorce cases, jurisdiction
in such matters resting entirely with the ecclesiastical
courts of the realm. Peterson v. Peterson, 24 Haw. 239,
246 (1918). American family law has no common law
lineageit is entirely a twentieth century statutory
creation. N. Blake, The Road To Reno, A History of
Divorce in the United States 56 (1962).

Like the court of appeals, many other circuits

continue to extend immunity by analogy to modern
functions without examining historical factual
foundation, including at least the First9, Fifth10,
Eighth11 Ninth12 and Tenth.13 Unsurprisingly, the

The concept of best interests of the child arose in

the twentieth century. See R. Mnookin, Child-Custody
Adjudication: Judicial Functions in the Face of
Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234
(1975).

Buchanan v. Ford, 638 F. Supp. 168 (N.D.N.Y. 1986)

(analogizing child abuse worker to police rather than
prosecutor); Doe v. County of Suffolk, 494 F. Supp. 179 (E.D.N.Y.
1980) (same).
10
Austin v. Borel, 830 F.2d 1356, 1363 (5th Cir. 1987) (denying
absolute immunity by analogizing social worker to complaining
witness, without analyzing common law);
11
Thomason v. SCAN Volunteer Servs., Inc., 85 F.3d 1365, 1373
(8th Cir. 1996) (extending immunity to social worker initiating
child protection proceedings by analogy to prosecutorial function,
without analyzing common law);

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12

Doe v. Lebbos, 348 F.3d 820 (9th Cir. 2003), abrogated in

Beltran v. Santa Clara County, 514 F.3d 906 (9th Cir. 2008) (Lebbos
extended absolute immunity by analogy to prosecutor; Beltran
overruled Lebbos. Neither case examined 1871 common law);
13
Czikalla v. Malloy, 649 F. Supp. 1212 (D.Colo. 1986)
(analogizing child abuse worker to police rather than
prosecutor);
14
See generally M. Johns, A Black Robe Is Not A Big Tent: The
Improper Expansion Of Absolute Judicial Immunity To NonJudges In Civil-Rights Cases, 59 SMU L.REV. 265, 276.

27

28

4.
Under Bradley, Family Court
Functions are Inferior, and Thus Not
Entitled to Absolute Immunity

5.
The Court of Appeals Conflated (1)
Judicial in Nature and (2) Subject
Matter Jurisdiction

Family jurisdiction is incontrovertibly specific

and thus inferior to a court of general jurisdiction.
Minn. Stat. 518.
Family court in a dissolution
proceeding is a court of limited jurisdiction. King v.
State Educ. Dep't, 182 F.3d 162 (2d Cir.1999); People
United for Children, Inc. v. City of New York, 108 F.
Supp. 2d 275, 286 (S.D.N.Y. 2000) (holding family court
not a court of competent jurisdiction for RookerFeldman analysis). Randall v. Brigham, 74 U. S. 523
(1868) describes the limited scope of immunity for
inferior courts: Judges exercising limited jurisdiction
were immune for acts within the limited jurisdiction,
yet were liable for civil damages for acts in excess of
their jurisdiction, and for acts done maliciously or
corruptly. Randall at 531.15 This observation was not
disturbed in Bradly. While Judge Knutson bears the
burden of demonstrating family court function even
existed at 1871 common law, in no case will he identify
an immunity scope greater than an 1871 inferior
courtjudicial acts within family jurisdiction not
done maliciously or corruptly. Id.

The court of appeals referenced the flexibility that

Minnesotas custody laws to give to the court to
determine the best interests of the children
concluding that statutory authorization supports a
conclusion that the listening session constituted a
function normally performed by a judge in deciding
custody disputes. App. 4a. This is a misconstruction
of Stumps test: The existence of subject matter
jurisdiction (flexible statutes to determine the best
interests of the children.) is not determinative of
judicial in nature. An official asserting immunity
must prove both (1) judicial act and (2) within subject
matter jurisdiction. Stump at 362.

The court of appeals extension of the rule for a

court of general jurisdictionwhich immunizes acts
done with malice or corruption of motive16to
inferior family jurisdiction was error.
15

This distinction was recognized in Stump, 435 U. S. 349, 356

(1978), fn. 7. See also Randall v. Brigham, 74 U. S. 523, 535-36
(1868).
16
App. 3a.

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Yet the court of appeals attributed the second

subject matter jurisdiction element to the first
judicial act factor. When flexible jurisdiction is
properly analyzed only under the secondsubject
matter jurisdictionprong, the court of appeals
analysis under the first prong is bereft of supporting
findings. The court of appeals extension of immunity
absent proof of both elements was error. Id.
6.
The Circuits are Divided on
Immunity of Psychologist and Social
Worker Function
The courts of appeal disagree on the level of
immunity
appropriate
for
court-connected
psychologists and social workers, warranting review

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17

18

19

under Rules 10(c). The Third, Seventh, Eighth,

and Tenth Circuits20 have incorrectly extended quasijudicial immunity to various functions of courtappointed social workers and psychologists, reasoning
these investigators are arms of a court similar to
prosecutors. The Ninth Circuit has corrected its course,

aligning with Antoine and Kalina.21 These stubbornly

inconsistent decisions warrant review under Rules 10
(a) and (c).
C.
The Court of Appeals Failed to
Analyze (c) Stay Away and Property
Commands and (d) Arrest and Shackling of
Counsel in a Wheelchair at Trial

17

Hughes v. Long, 242 F.3d at 126-28 (extending judicial

immunity to private child custody evaluator and apointed
psychologist as arms of the court); D.T.B. v. Farmer, 114 F.
Appx 446, 447 (3d Cir. 2004) (applying Hughes v. Long to
immunize court-appointed psychologist); McArdle v. Tronetti, 961
F.2d 1083, 1085 (3d Cir. 1992) (immunizing appointed prison
psychiatrist); Williams v. Consovoy, 333 F. Supp. 2d 297, 302
(D.N.J. 2004) (finding psychologist appointed by parole board
absolutely immune); Pierson v. Members of Delaware County, No.
99-3435, 2000 WL 486608, at *4 (E.D. Pa. April 25, 2000) (appointed
psychiatrist conducting competency evaluation absolutely immune
as an arm of the court); P.T., A.T. & H.T. v. Richard Hall Cmty.
Mental Health Care Ctr., 364 N.J. Super. 460, 462 (N.J. Super. Ct.
App. Div. 2003) (applying absolute judicial immunity to a courtappointed psychologist).
18
Duzynski v. Nosal, 324 F.2d 924, 929 (7th Cir. 1963)
(immunizing appointed psychologist evaluating mental health).
19
Morstad v. Dept of Corr. and Rehab., 147 F.3d 741, 744 (8th
Cir. 1998) (immunizing appointed psychologist as essential to the
judicial process.)); Moses v. Parwatikar, M.D., 813 F.2d 891, 892
(8th Cir. 1987), disapproved on other grounds, Burns v. Reed, 500
U. S. 478, 496 (1991) (extending absolute and witness immunity to
court-appointed psychiatrist conducting competency examination);
Myers v. Morris, 810 F.2d 1437, 1466-67 (8th Cir. 1987)
(immunizing [n]onjudicial persons who fulfill quasi-judicial
functions intimately related to the judicial. . . . ).
20
Turney v. OToole, 898 F.2d 1470, 1474 (10th Cir. 1990)
(extending quasi-judicial immunity to psychologist); Martinez v.
Roth, No. 94-2206, 1995 WL 261127, at *3 (10th Cir. Apr. 26, 1995)
(extending quasi-judicial immunity to court-appointed psychologist
assisting court in best interest of the child investigation because
service was integral to the judicial process).

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Neither the district court nor the court of appeals

analyzed whether (c) movement and property control
orders or (d) arrest and shackling of counsel were
immune.22
Regarding (c), movement and property control
orders, as noted above, modern family courts exercise
highly invasive equitable powers to order litigants to
stay away from their family and friends, abandon their
home, surrender property, and undergo expensive and
humiliating forensic examinations, psychotherapy,
21

See, e.g., Miller v. Gammie, 335 F.3d 889, 898-900 (9th Cir.
2003) (reversing Babcock v. Tyler, 884 F.2d 497, 502-03 (9th
Cir.1989) as fundamentally inconsistent with this Courts
decisions in Antoine v. Byers & Anderson, Inc., 508 U. S. 429
(1993) and Kalina v. Fletcher, 522 U. S. 118 (1997)); Beltran v.
Santa Clara County, 514 F.3d 906, 908 (9th Cir. 2008) (reversing
Doe v. Lebbos , 348 F. 3d 820 (9th Cir. 2003) as inconsistent with
Antoine and Kalina, and finding social workers not immune for
investigative conduct); and Jensen v. Lane Cnty., 222 F.3d 570, 577
(9th Cir. 2000) (finding no firmly rooted tradition at common law
of absolute immunity for psychiatrist function).
22
The court of appeals may have ignored the argument as
outside the scope of the opening brief, citing Jasperson v.
Purolator Courier Corp., 765 F.2d 736 (1985). Such would be error.
Grazzini-Ruckis opening brief set forth all four categories, arguing
not one was immune.

31
and supervised visitation. [O]ver three thousand
four hundred (3,400) directives of Defendant David L
Knutson [sic] regulate this [Plaintiffs] family, without
due process or rule of law or rule of evidence seizing
Plaintiff from her home, children and Property.
App.22a. Given that these sweeping powers to control
family are enabled by twentieth-century legislation
and only in twentieth century family courtsJudge
Knutson could not carry his burden of proving such
function as judicial in 1871.
Regarding (d) --- arrest and shackling of counsel
--- several courts have held physical assault or evicting
litigants are not judicial acts. See, e.g., Greggory,
Harper, supra. It is apparent that Judge Knutson
could not have carried his burden of showing immunity
for the illegal arrest and shackling of Petitioners
counsel, and then carrying on the trial with the
attorney in handcuffs.
I.
PIERSON AND STUMP STAND IN ERROR
FOR EXCEEDING THE JUDICIAL POWER
VESTED IN UNITED STATES COURTS UNDER
ARTICLE III OF THE CONSTITUTION
In deciding Pierson v. Ray, 386 U. S. 547 (1967),
this Court construed Section 1983 to narrow its
sweepfinding an immunity which is inconsistent with
the face of the statute restraining every person.
Imbler at 417 (The statute thus creates a species of
tort liability that on its face admits of no immunities.);
Wyatt v. Cole, 504 US 158, 163 (1992). Clearer language
has likely never emerged from Congress. Id.

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32
A.
This Court Lacks Jurisdiction
Construe An Unambiguous Statute

to

Article III vests only judicial power in this

Court.
Article I reserves legislative power to
Congress. For I agree there is no liberty, if the power
of judging be not separated from the legislative and
executive powers. A. Hamilton, The Federalist No. 78
(1788). If congress has given the power to this court, we
possess it, not otherwise . . . . Turner v . Bank of
North America, 4 U . S .
8, 10 n.1(a) (1799).
These principles of course apply to Section 1983. [I]t is
for Congress, not this Court, to determine to what
extent to abrogate the judiciary's common-law
immunity. Pulliam v. Allen, 466 U. S. 522, 543 (1984).
Section 1983 is not a subject for statutory
interpretation. When we find the terms ...
unambiguous, judicial inquiry is complete . . . . Pavelic
& LeFlore v. Marvel Entertainment Group, 493 U. S.
120, 123 (1989); CTS Corp. v. Walderburger, 573 U. S.
___, ___ (2014) (slip op., p. 10) (Congressional intent is
discerned primarily from the statutory text.). The
Court does not revise legislation . . . just because the
text as written creates an apparent anomaly.
Michigan v. Bay Mills Indian Community, 572 U. S.
___, ___ (2014) (slip op., p. 10).
Piersons presumption of Congressional intent to
read an immunity into Section 1983 was a legislative act
narrowing an unambiguous statutean act in excess of
this Courts jurisdiction under Article III, and invading
exclusive congressional authority under Article I, of the
Constitution. On this basis alone, Pierson must be
reversed.

33
B.
Any Construction of The Civil Rights
Act Must Admit Congresss Remedial Intent
Congress adopted the language of Section 1983
from its criminal predecessorthe 1866 Civil Rights
Act, today codified at 18 U.S.C. 242. Monroe v. Pape,
365 U. S. 167 (1961).23 Section 1983 was introduced by
Ohio Representative Shellabarger, who explained his
bill on the House floor by referencing Section 2 of the
1866 Act: that section provides a criminal proceeding
in identically the same case as this one provides a civil
remedy for . . . 24 Section 1 of the 1871 Act (now
Section 1983) passed rapidly through Congress because
Congress recognized Section 1 as merely adding a
civil remedy to the 1866 Act, for which there is no
absolute immunity. United States v. Lanier, 520 U. S.
259, 266 (1997) (per curiam). The Acts thus must be
construed as in pari materiaany construction of the
1871 Act must admit congressional intent in enacting
the 1866 Act. Picking v. Pennsylvania R.R., 151 F.2d
240 (3rd Cir. 1945).
On that record it is incontrovertible that the 42nd
Congress affirmatively rejected common law judicial
immunity.
[T]he decisions of the county judges, who are made
little kings, with almost despotic powers to carry out
the demands of the legislature which elected thempowers which, almost without exception, have been
23

See also, Note, Liability of Judicial Officers Under Section

1983, 79 YALE L.J. 322, 327-328 (1969) (hereinafter Yale Note)
24
Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871); Yale Note
at 327.

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34
exercised against Republicans without regard to law
or justice, make up a catalogue of wrongs,
outrageous violations, and evasions of the spirit of
the new constitution, unscrupulous malignity and
partisan hate never paralleled in the history of
parties in this country or any other.
Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) (remarks
of Representative Platt).
What is to be the case of a judge? . . . Is that State
judge to be taken from his bench? Is he to be liable in
an action? ... It is the language of the bill: for there is
no limitation whatsoever on the terms that are
employed, and they are as comprehensive as can be
used.
(remarks of Senator Thurman).25
(1866) (remarks of Representative Lawrence). The
1866 Act was vetoed by President Johnson because it
abrogated common law judicial immunity.26 In the fight
to defeat the veto, Senate Judiciary Committee
Chairman Trumbull expressed revulsion at the entire
concept of judicial immunity: It is the very doctrine out
of which the rebellion was hatched.27

25

See also Yale Note at 328 there was no universal acceptance

of the broad English immunity rule in 1871, and the only legislative
history available supports the proposition that Congress intended
Section 1983 to cover judges. Yale Note at 328.
26
Yale Note at 327.
27
Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) (remarks of
Senator Trumbull); Yale Note at 328.

35
C.
Piersons Adoption of Tenney v.
Brandhove Was Startling Error
Instead of applying the unambiguous statute, Chief
Justice Warren in Pierson adopted analysis of
legislative privilege from Tenney v. Brandhove, 341 U.
S. 367 (1951), reading immunity into the statute
becausehe perceivedThe immunity of judges for
acts within the judicial role is equally well established
[as the speech and debate privilege], and we presume
that Congress would have specifically so provided had
it wished to abolish the doctrine. Pierson at 554-555
(1967).
In Tenney Justice Frankfurter aligned the English
speech liberty with the federal speech or debate
analog in the United States Constitution at Article I,
Sec. 6, cl. 1.28 Like Chief Justice Warren, Justice
Frankfurter presumedcontrary to the unambiguous
statute, and analyzing no legislative historythat the
42nd Congress would not have intended to limit any
states legislative activity in enacting the 1871 law
because Congress was itself a staunch advocate of
legislative freedom. Id. at 376 (emphasis added).
Tenney also held the narrow immunity was lost if
there was a usurpation of functions exclusively vested
in the Judiciary or the Executive. Id.

28

That privilege is against arrestnot civil liabilitydoes not

extend to felonies or treason, or breach of the peace. Arrest
outside of Session is permitted, and members maybe
questioned for activity other than speech or debate. Tenney at
377.

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36
Yet judicial immunity is the opposite of legislative
privilegejudges are sovereigns possessing not
rights but delegated authority. While judges have all
the rights of any citizen qua a citizen, a judge qua judge
possesses no rights.
First and Fourteenth
Amendments restrain only such action as may fairly be
said to be that of the States. United States v.
Morrison, 529 U. S. 598, 621 (2000). The function of a
judge is to adjudicateapply the given law to properlyadmitted facts. Judges are not representatives of
voters, but radically independent of electoral will and
accountability. There is no need for a judge to express
opinions of her own or those she represents to create
lawshe is given law. Other than necessary for faithful
adjudication, a judges private freedom of conscience
is irrelevant to judicial function. Relevant conscience
is given in the form of law that has matured through
free debate elsewhere. County judges do not function
as a body, and (should) have no one to debate. The
framers of the United States and State of Minnesota
constitutions did not draft a judicial speech or debate
privilege because judges are not empowered to speak
or debate.
There is no need to protect a judges speech other
than to preserve ability to pronounce adjudication
merely a substantial state interest29 that must in all
cases yield to fundamental rights. There being no
judicial speech liberty in 1871, there is no reason to
presume that the 1871 Congress would have seen
need to expressly abrogate a tradition of immunity to
constitutional injury that has never existed.

29

Gentile v. State Bar of Nevada, 501 U. S. 1030, 1074 (1991).

37
D.
American Common Law Does
Not Support Judicial Immunity
This Court has commanded that courts considering
an officers affirmative defense of immunity must
examine the common law tradition. In Pierson Chief
justice Warren found that judicial immunity was at
least as well established as legislative privilege in 1871
without conducting any historical analysis of common
law, citing only Bradleys (post-Civil Rights Act)
holding and the Kings Bench case of Scott v.
Stansfield.30 Pierson at 554. Yet Bradley was decided
in 1872a year after Congress passed Section 1983.
Congress could not have had it in mind while debating
Section 1983.
Justice Fields articulation of immunity in Bradley
was innovativenot descriptive.31 Bradley rationalized
adopting the English sovereign immunity as good
policy. This provision of the law is not for the
protection or benefit of a malicious or corrupt 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 at n. 16.
This policy
30

3 Law Reports, Exchequer, 220 (1868), analyzed in Bradley at

n. 16. Available at
http://www.forgottenbooks.com/readbook_text/The_Law_Reports
_1868_v3_1000098717/237.
31
See J. Feinman, R. Cohen, Suing Judges: History and
Theory, 31 S. C. L. Rev. 201, 243-249, 254-56 (1979) (hereinafter
Suing Judges) (Certainly, no broad rule of immunity existed
prior to Bradley. For most of the history of the common law,
judges had only a very limited immunity.); Yale Note at 323-327
([J]udicial immunity was not a universal doctrine.).

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38
exhortation was an expansion from the more restrictive
rules analyzed in Randall v. Brigham, 74 U. S. 523
(1868): [Was] the act done a judicial act, done within
his
jurisdiction?
Randall at 531. Randall
acknowledged decisions which denied an absolute
immunity where the acts, in excess of jurisdiction, are
done maliciously or corruptly.
Moreover, every
authority cited in both Randall and Bradley is or
adopts foreign lawthe English sovereign immunity
rules imposed by an autocracy our nation fought wars
to become independent of. See, e.g., Randall, n. 14.32
Far from an intent to incorporate common an
English monarchical sovereign immunity rule, Congress
in passing the unambiguous Civil Rights Act
specifically intended to eliminate it as the source of the
monumental evil of state-sponsored oppression
jeopardizing our nations existence by precipitating
civil warfare.
Pierson was a startlingindeed
dangerousdeparture from principles settled at the
founding of our nation and cherished for centuries since.
Because the court of appeals extended immunity
relying on Piersons progeny, Stump, it decided an
important question of federal law that has not been, but
should be, settled by this Court pursuant to Rule 10(c):
Whether this Court in Pierson exceeded its jurisdiction
under Article III, and invaded legislative power under
Article I, of the United States Constitution.
!
!

32

See Suing Judges at 224-43 (analysis of pre-Bradley primary

sources).!

39
CONCLUSION
The Petition for certiorari should be granted.
Respectfully submitted,

Michelle Lowney MacDonald Shimota

Supreme Court Bar No. 28825
MacDonald Law Firm, LLC
1069 South Robert Street
West St. Paul, MN 55118
Telephone: (651) 222-4400
Facsimile: (651) 222-1122
Michelle@MacDonaldLawFirm.com
Attorney for Petitioner Sandra Grazzini-Rucki

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