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BRADLEY V. FISHER, 80 U. S. 335 (1871)
U.S. Supreme Court
Bradley v. Fisher, 80 U.S. 13 Wall. 335 335 (1871)
Bradley v. Fisher
80 U.S. (13 Wall.) 335
1. An order of the Criminal Court of the District of Columbia, made in 1867, striking the name of an attorney from its roll did not remove the attorney from the bar of the Supreme Court of the District, the Criminal Court being at that time a separate and independent court, and in an action by the attorney against the judge of the Criminal Court, that order was inadmissible to show a removal by order of the defendant, or by order of the court held by him, from the Supreme Court, notwithstanding that an act of Congress, passed in 1870, changed the independent character of the Criminal Court and declared that its judgments, decrees, and orders should be deemed the judgments, decrees, and orders of the Supreme Court of the District. The act of Congress, in enlarging the operation of the order, did not alter its original character.
2. Judges of courts of record of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction as to their liability made between acts done by them in excess of their jurisdiction and acts done by them in the clear absence of all jurisdiction over the subject matter.
3. The power to remove attorneys from the bar is possessed by all courts which have authority to admit attorneys to practice; but except where the matters constituting the grounds of its action occur in open court in the presence of its judges, the power of the court should not be exercised without notice to the offending party of the grounds of complaint against him and affording him ample opportunity of explanation and defense.
4. The obligation which attorneys assume when they are admitted to the bar is not simply to be obedient to the Constitution and laws, but to maintain at all times the respect due to courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from insulting language and offensive conduct towards the judges personally for their judicial acts. A threat of personal chastisement, made by an attorney to a judge out of court for his conduct during the trial of a cause pending, is good ground for striking the name of the attorney from the rolls of attorneys practicing in the court. Such an order is a judicial act for which the judge is not liable to the attorney in a civil action.
This was all action brought by Joseph H. Bradley, who was, in 1867, an attorney at law practicing in the Supreme Court of the District of Columbia, against George P. Fisher, who was then one of the justices of that court, to recover damages alleged to have been sustained by the plaintiff, "by reason of the willful, malicious, oppressive, and tyrannical acts and conduct" of the defendant, whereby the plaintiff was deprived of his right to practice as an attorney in that court. The case was thus:
On the 10th of June, 1867, the trial of John H. Suratt for the murder of the late President Lincoln was begun in the Criminal Court of the District and continued until the 10th of August, when the jury, failing to agree on a verdict, was discharged. The defendant was the presiding judge in the court during the progress of the trial, and until its termination,
and the plaintiff was one of the attorneys who defended the prisoner. Immediately on the discharge of the jury, the court thus held by the defendant made the following order, which with its recitals was entered of record:
"On the 2d day of July last, during the progress of the trial of John H. Suratt for the murder of Abraham Lincoln, immediately after the court had taken a recess until the following morning, as the presiding justice was descending from the bench, Joseph H. Bradley, Esq., accosted him in a rude and insulting manner, charging the judge with having offered him (Mr. Bradley) a series of insults from the bench from the commencement of the trial. The judge disclaimed any intention of passing any insult whatever, and assured Mr. Bradley that he entertained for him no other feelings than those of respect. Mr. Bradley, so far from accepting this explanation or disclaimer, threatened the judge with personal chastisement. No court can administer justice or live if its judges are to be threatened with personal chastisement on all occasions whenever the irascibility of counsel may be excited by imaginary insult. The offense of Mr. Bradley is one which even his years will not palliate. It cannot be overlooked or go unpunished."
"It is therefore ordered that his name be stricken from the roll of attorneys practicing in this Court."
"GEORGE P. FISHER"
"Justice of the Supreme Court, D.C."
The present suit was founded upon this order, which was treated in the declaration as an order striking the name of the plaintiff from the roll of attorneys of the Supreme Court of the District, and not as an order merely striking his name from the roll of attorneys practicing in the Criminal Court of the District. The declaration had two counts, and was entitled and filed in the Supreme Court of the District.
The first count alleged that the defendant caused the order (which was set out at length) to be recorded "on the minutes of the Criminal Court, being one of the branches of the said Supreme Court;" that the several statements, contained in the order were untrue, and were specifically denied; and that the defendant "falsely, fraudulently, corruptly, and maliciously
intended thereby to give a color of jurisdiction" for making the order that the name of the plaintiff "be stricken from the roll of attorneys practicing in this Court," whereby the plaintiff had been injured, and claimed damages, $20,000.
The second count alleged that the defendant "wantonly, corruptly, arbitrarily, and oppressively intending to remove the plaintiff" from his office as an attorney at law, "caused to be entered on the records of the Supreme Court of the District of Columbia, Criminal Court, March Term 1867," the order in question, which was set forth at length, "the same being an order removing the plaintiff from the office of an attorney at law in the said Supreme Court of the District of Columbia," whereby he was greatly disturbed in the enjoyment of his office and prevented from having the use and benefit thereof, in so full and ample a manner as he otherwise might and would have had.
The declaration also averred that the order was made without notice of any kind to the plaintiff, and was summary, that there was no complaint made by him to the justice, and that he did not accost him while the court was in session, nor immediately on the court's taking a recess and as the presiding judge was descending from the bench, as was stated in the order, nor did he, the plaintiff, at the time and place mentioned in the order, address the justice at all after the court had taken the recess, until the judge had passed some time in a private room, and had left the same and gone out of the courthouse, and the great body of auditors, jurors, witnesses, clerks, and officers of the court, and the jury empanelled, and the prisoner on trial had left the courthouse, and so the declaration proceeded to say, "the said judge willfully, maliciously, corruptly, and unlawfully fabricated the said order to give color and pretense to his jurisdiction in the premises."
By reason of which unlawful, wrongful, unjust, and oppressive acts of the defendant, the plaintiff alleged that he had been deprived of emoluments, and had lost sums of money which would otherwise have accrued to him from
the enjoyment of his office and from his practice as an attorney in the courts of the county and district &c., and therefore he claimed $20,000 damages.
Pleas: 1st, the general issue, "not guilty;" and 2d, a special plea, that before and at the time of the alleged commission &c., the defendant was one of the justices of the Supreme Court of the District of Columbia, and, as such justice, was regularly and lawfully holding, by appointment of said Supreme Court of the District of Columbia, in general term, at the City of Washington, in said District, a court of record, to-wit, the Criminal Court of said District, created by authority of the United States of America, and having general jurisdiction for the trial of crimes and offenses arising within said District, and that the said supposed trespass consisted of an order and decree of said Criminal Court, made by said defendant in the lawful exercise and performance of his authority and duty, as the presiding justice of said Criminal Court, for official misconduct and misbehavior of said plaintiff (he being one of the attorneys of said Criminal Court), occurring in the presence of the said defendant as the justice of said Criminal Court holding the same as aforesaid and not otherwise, as appears from the record of said Criminal Court and the order or decree of the defendant so made as aforesaid.
Wherefore he prayed judgment, if the plaintiff ought to have or maintain his aforesaid action against him &c.
The defendant joined issue on this plea.
On the trial the plaintiff produced the order entered by the Criminal Court, which was admitted to be in the handwriting of the defendant, and offered to read it in evidence, but upon objection of the defendant's counsel to its admissibility, it was excluded, and the plaintiff excepted. Subsequently the plaintiff read in evidence the order, as entered, from the records of the Criminal Court, and offered to show that the order was prepared, written, and published by the defendant with express malice against the plaintiff, to defame and injure him, and without the defendant having any jurisdiction to make the order, and that there was no altercation
on the 2d July, 1867, between him and the judge, and that no words passed between them, and that they were not near each other when the Criminal Court took its recess, until the next day or immediately thereafter, and as the presiding justice thereof was descending from the bench; but upon objection of the defendant's counsel, the proof was excluded, and the plaintiff excepted.
The plaintiff also offered to prove that the only interview between him and the judge, which occurred on the 2d of July, 1867, after the Criminal Court had taken a recess, began after the court had adjourned, and the judge had left the court room and the building and returned to the court room, and in that interview, he did not address the judge in a rude and insulting manner; that he did not charge him with having offered him, the plaintiff, a series of insults from the bench from the commencement of the trial; that the judge did not disclaim any intention of passing any insult whatever, nor assure the plaintiff that he entertained for him no other feelings but those of respect; that the plaintiff did not threaten the judge with personal chastisement, but to the contrary thereof, the said judge was from the opening of the interview violent, abusive, threatening, and quarrelsome; but upon objection the proof was excluded, and the plaintiff excepted.
The plaintiff thereupon asked a witness to state what passed between the plaintiff and defendant on the said 2d of July, 1867, the time when the parties met, and whether it was before the adjournment of the court on that day, or after it had adjourned, and how long after it had adjourned, and to state all he knew relating to that matter; the object of the evidence being to contradict the recitals in the order, and show that the justice had no jurisdiction in the premises, and had acted with malice and corruptly. But upon objection the evidence was excluded, and the plaintiff excepted. And the court ruled that, on the face of the record given in evidence, the defendant had jurisdiction and discretion to make the order, and he could not be held responsible in this private action for so doing, and instructed the jury that
the plaintiff was not entitled to recover. The jury accordingly gave a verdict for the defendant, and judgment being entered thereon, the plaintiff brought the case to this Court on a writ of error.
To understand one point of the case the better, it may be mentioned that in Ex Parte Bradley, [Footnote 1] this Court granted a peremptory mandamus to the Supreme Court of the District to restore Mr. Bradley to his office of attorney and counselor in that court, from which in consequence of the matter with Judge Fisher in the Criminal Court, he had been removed; this Court, that is to say the Supreme Court of the United States, holding that the Criminal Court of the District was, at the time the order in question was made, a different and separate court from the Supreme Court of the District of Columbia, as organized by the act of March 3, 1863.
It may also be stated that on the 21st of June, 1870, after the decision just mentioned, Congress passed an act entitled, "An act relating to the Supreme Court of the District of Columbia," [Footnote 2] which declared
"That the several general terms and special terms of the circuit courts, district courts, and criminal courts authorized by the act approved March 3, 1863, entitled 'An act to reorganize the courts in the District of Columbia, and for other purposes,' which have been or may be held, shall be, and are declared to be severally, terms of the Supreme Court of the District of Columbia; and the judgments, decrees, sentences, orders, proceedings, and acts of said general terms, special terms, circuit courts, district courts, and criminal courts heretofore or hereafter rendered, made, or had, shall be deemed judgments, decrees, sentences, orders, proceedings, and acts of said Supreme Court."
It may be well also, as counsel in argument refer to it, to state that an act of Congress of March 2, 1831, [Footnote 3] enacted:
"That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempt of court, shall not be construed to extend to any cases except
the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice; the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts. "
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