Roles, Forrest Hansbury

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Volume 68 | Issue 3 Article 8April 1966Civil Rights--Applications of Judicial Immunity andVolenti Non Fit InjuriaForrest Hansbury RolesWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Civil Rights and Discrimination CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationForrest H. Roles, Civil Rights--Applications of Judicial Immunity and Volenti Non Fit Injuria, 68 W. Va. L. Rev. (1966).Available at: https://researchrepository.wvu.edu/wvlr/vol68/iss3/8CASE COMMENTSCivil Rights-Application of Judicial Immunity andVolenti Non Fit InjuriaPs sought damages for their detention in the Jackson, Mississippijail under the common law tort of false imprisonment and alsoinitiated a civil action for deprivation of rights granted by thefederal Civil Rights Acts. They were civil rights workers on a"prayer pilgrimage." When they attempted to enter a segregatedbus terminal restaurant, they were halted by police officers andwere arrested when they refused to disburse. There was evidenceindicating that the purpose of their trip was to challenge thesegregation policy of the restaurant, and that in doing so, they con-templated being arrested. Ds were the arresting officers and thepolice justice before whom Ps were tried and convicted. A jurytrial in the Southern District of Mississippi resulted in a verdictfor Ds and Ps appealed. Held, reversed. The police justice andthe policemen are immune from suit for false arrest. The policejustice is immune from suit under the federal act. The causeagainst the officers was remanded to the district court for a factualdetermination of whether the Ps had "a plan and purpose of beingarrested". Such a showing would preclude Ps" recovery under thefederal act. Pierson v. Ray, 352 F.2d 213 (5th Cir. 1965).The subject of this note is the court's application of the doctrinesof judicial immunity and volenti non fit injuria to the federalcause of action. 42 U.S.C. 1983 (1959). The act provides thatanyone who under color of state law deprives a citizen of anycivil right shall be liable to the injured party. The civil rights actcreates a right of recovery which is analogous to a tort action, butthe act does not indicate whether defenses or immunities applicableto similar tort action apply to suits under it.In cases where legislative gaps appear, such as this one, thecourts essentially legislate by applying the law they think bestsuited to the statute. WBIGHT, FMmiAL Coutrs § 60 (1963).The courts have not been consistent as to the sources of the lawthey apply in a particular case. In general, they apply either thegeneral principles of the common law or "federal" law which isderived from the intent of Congress or the federal policy they[ 311 11Roles: Civil Rights--Applications of Judicial Immunity and Volenti Non FPublished by The Research Repository @ WVU, 1966WEST VIRGINIA LAW REVIEWwish to enact by the law. No clear basis has emerged which wouldassist in determining when general common law or federal lawshould be applied. The principal guide the courts have chosen isthe furtherance of the federal policy the Congress intended toeffectuate. The courts have chosen to apply state law to thestatute when it appears that the federal policy would be betterachieved by doing so or where the statute implies that state lawshould govern. IA MooRE, FEDmur Prtcrice ff 10. 323 [22] (2d.ed. 1965).The first problem, whether judicial immunity should have beenapplied, might have been resolved differently by the court in theprincipal case had federal law been chosen. The question of im-munity often has arisen under the statute, and although the circuitand district courts are split, the question has never been decidedin the United States Supreme Court. A leading case denyingjudicial immunity from suits brought under the statute is Pickingv. Pennsylvania RR. Co., 151 F.2d 240 (3d Cir. 1945). In supportof denying this immunity, the court in the Picking case cited SolaElec. Co. v. Jefferson Co., 317 U. S. 173 (1942). The court statedat 176,When a federal statute condemns an act as unlawful the ex-tent and nature of the legal consequences of the condemnation... are.., federal questions, the answers to which are to bederived from the statute and the federal policy which isadopted. To the federal statute and policy conflicting statelaw and policy must yield.The Third Circuit court felt that a state grant of judicial immunityshould yield to the federal policy of compensating individualsfor state actions, or for colorably state authorized actions whichdeprived them of their civil rights. Professor Moore agrees withthis case. 1A Mooim, FEDmiAr PRACIICE jf 0.323 [3] (2d ed. 1965).The vast majority of decisions on this question grants judicial orquasi-judicial officers immunity from suit under the statute. Thegrounds for this holding are usually: (1) the prevalence of thedoctrine of judicial immunity from tort actions in the federal courts,Gateway v. Sutton, 310 F.2d 107 (10th Cir. 1962); or (2) theinterest in keeping judges free to act without worries of civilliability, Ryan v. Scoggin, 245 F.2d 54 (10th Cir. 1957); or (3)an application of United States Supreme Court cases granting im-[Vol. 682West Virginia Law Review, Vol. 68, Iss. 3 [1966], Art. 8https://researchrepository.wvu.edu/wvlr/vol68/iss3/8CASE COMMENTSmunity, Francis v. Crafts, 203 F.2d 809 (1st Cir. 1953); or (4)some combination of the three, as in the principal case. TheSupreme Court case cited as overruling Pickway is Tenney v. Brand-hoye, 341 U.S. 367 (1951) which holds legislators immune fromprosecution under the statute. Monroe v. Pape, 365 U.S. 167(1960) holds municipal corporations immune.The second problem presented by the principal case, whethervolenti non fit injuria should be applied, involves a similar question.Should the general common law of torts be applied to the statute,or should the courts look to the federal policy Congress intendedthe statute to serve? In the principal case, which appears to be thefirst case discussing the application of consent to the statute, thelaw applied was the "governing common law rules" of Mississippi.It appears that a plan and purpose of being arrested would pro-hibit recovery for false imprisonment under the general law. Pinos-sm, ToRTs § 102 (3d ed. 1964).A more difficult question is whether the court in the principalcase properly interpreted the intent of Congress. In Monroe v.Pape, supra the purposes for which the act was passed were care-fully analyzed. Justice Douglas, writing the majority opinion, feltthat a chief purpose was to supply a federal remedy where thepeculiar situation in a state prevented a citizen from obtainingredress for the civil right which was taken from him. JusticeFrankfurter felt the liability was created where redress wouldbe barred by a statute, custom or usage which sanctioned the actionsof those who deprived a citizen of civil rights.Is the federal interest in protecting a citizen from deprivation ofhis civil rights strong enough to override the principle of volentinon fit injuria, as applied to common law tort actions? DidCongress intend for a person deprived for a civil right to recovereven though he consented to that deprivation? These questionswere not answered or apparently even considered by the court inthe principal case. The opinion states simply that as (1) the actis to be read against the background of tort liability, and that (2)the source of the background in this case is the law of Mississippi.Thus, according to Mississippi law volenti non fit injuria appliesto this case.The weakness of this reasoning apparently is evident to the FifthCircuit court. In a footnote to statement number (2) the court196613Roles: Civil Rights--Applications of Judicial Immunity and Volenti Non FPublished by The Research Repository @ WVU, 1966WEST VIRGINIA LAW REVIEWin the principal case admits that questions as to liability underthe statute are to be determined by federal law. Instead of takingthis course, the court, citing Justice Frankfurter's dissent in Mon-roe v. Pape, supra, decided that the general background of tortliability should be the source of the law applied. When that lawis found in state decisions, the footnoted rule is in effect reversedas state law becomes controlling.The decision that judicial immunity and volenti non fit in-juria apply to the federal acts will probably not have severe con-sequences. It is difficult to imagine a person consenting to adeprivation of his civil rights other than in a factual situationsimilar to the one in the principal case. However, the methodthe court used in arriving at the decision concerning the defense ofconsent does establish a questionable precedent. In applying afederal statute specifically enacted to override state law, it seemsvery strange that the court should look to state law.Forrest Hansbury RolesConstitutional Law-Apportionment of Constitutional ConventionsThe Governor of West Virginia sought a writ of mandamus inthe state's Supreme Court of Appeals to require the Commissionerof Finance and Administration to affix his signature to certaincontracts for publishing notices of a special public election on thequestion of calling a convention to alter the state's constitution.Held, writ denied. The statute setting up the method by whichdelegates to the convention would be chosen and under whichthe expenditure of funds would be made was unconstitutional inthat it violated the state's constitutional provision regulating ap-portionments of representation. State ex rel. Smith v. Gore, 143S.E.2d 791 (W. Va. 1965).The principal case was decided on the basis of the applicabilityof article II, section 4, of the West Virginia Constitution to theapportionment of a constitutional convention. The constitution pro-vides: "Every citizen shall be entitled to equal representation ingovernment, and, in all apportionments of representation, equalityof numbers of those entitled thereto, shall, as far as practicable,be preserved." It was not necessary for the court to consider the[Vol. 684West Virginia Law Review, Vol. 68, Iss. 3 [1966], Art. 8https://researchrepository.wvu.edu/wvlr/vol68/iss3/8

Civil Rights--Applications of Judicial Immunity and Volenti Non Fit Injuria

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Civil Rights--Applications of Judicial Immunity and Volenti Non Fit Injuria

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