IN THE SUPREME COURT OF MISSISSIPPI NO CA APPEAL FROM THE CHANCERY COURT OF SIMPSON COUNTY, MISSISSIPPI

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1 E-Filed Document Nov :30: CA Pages: 58 IN THE SUPREME COURT OF MISSISSIPPI NO CA MARILYN NEWSOME APPELLANT v. JUDGE DAVID SHOEMAKE, JOE DALE WALKER APPELLEES APPEAL FROM THE CHANCERY COURT OF SIMPSON COUNTY, MISSISSIPPI BRIEF OF APPELLEE JUDGE DAVID SHOEMAKE ORAL ARGUMENT NOT REQUESTED HAROLD E. PIZZETTA, III, MSB # 9752 KRISSY C. NOBILE, MSB # STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, MS Telephone No. (601) Facsimile: knobi@ago.state.ms.us hpizz@ago.state.ms.us Counsel for Judge David Shoemake

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Mississippi Supreme Court or the Court of Appeals may evaluate possible disqualification or recusal. 1. Marilyn Newsome, Appellant; 2. Judge David Shoemake, Appellee; 3. Joe Dale Walker, Appellee; 4. Peoples Bank, Defendant; 5. Chad Teater; Defendant; 6. Chris Dunn; Defendant; 7. Keely McNulty, Defendant; 8. Terrell Stubbs, counsel of record for the Appellant; 9. Lauren Cavalier Stubbs, counsel of record for the Appellant; 10. Krissy Nobile, counsel for Judge David Shoemake, Appellee; 11. Harold E. Pizzetta, III, counsel of record for Judge David Shoemake; Appellee; 12. Robert G. Evans, counsel for Joe Dale Walker, Appellee; 13. William Brabec, counsel for Peoples Banks and Chris Dunn; 14. Robert Parrott, counsel for Peoples Banks and Chris Dunn; 15. Marc Brand, counsel for Chad Teater, Appellee; 16. Alexander F. Guidry, counsel for Keely McNulty; i

3 17. Danny A. Drake, counsel for Keely McNulty; and 18. Judge James Bell, Special Chancellor SO CERTIFIED, this the 14th of November, 2016 /s/ Krissy C. Nobile KRISSY C. NOBILE, MSB # ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS. i TABLE OF CONTENTS. iii TABLE OF AUTHORITIES.v RESTATEMENT OF THE ISSUES..1 STATEMENT OF THE CASE...2 SUMMARY OF THE ARGUMENT...9 ARGUMENT I. The Chancery Court Properly Determined That The Doctrine Of Judicial Immunity Bars All Claims Against Judge David Shoemake.. 12 A. Judicial immunity is absolute and must be conferred to Judge Shoemake.12 B. Neither of the highly narrow exceptions to judicial immunity are applicable.17 i. First Exception: Non-Judicial Actions 17 ii. Second Exception: Absence of All Jurisdiction.. 22 C. The Mississippi Tort Claims Act provides Judge Shoemake additional grounds for immunity from the state law claims asserted against him...30 D. The Court properly entered its order pursuant to Rule 54(b).. 32 II III. The Lower Court Properly Granted Judge Shoemake s Motion to Stay...34 The Lower Court Rightfully Denied Newsome s Motion to Disqualify...36 A. Newsome s motion to disqualify amounted to an abusive and harassing litigation tactic. 36 B. Nothing prohibits the Attorney General s Office form representing Judge Shoemake. 37 iii

5 IV. The Lower Court Was Correct in Denying Newsome s Motion to Vacate 44 CONCLUSION..48 CERTIFICATE OF SERVICE.. 48 iv

6 TABLE OF AUTHORITIES FEDERAL CASES Adams v. McIlhany, 764 F.2d 294 (5th Cir. 1985)... 22, 27 Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993) Barnes v. Winchell, 105 F. 3d 1111 (6th Cir. 1997) Bloch v. Lake, No. 3:03-CV-2965-G, 2004 WL (N.D. Tex. May 10, 2004) Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994) Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)... 11, 13, 16, 25 Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982) Burkes v. Waggoner, 2008 WL (S.D. Miss. Mar. 12, 2008)... 14, 24 Butz v. Economou, 438 U.S. 478 (1978) Calderon v. Bandera Cnty., 2014 WL (W.D. Tex. Dec. 1, 2014) Cleavinger v. Saxner, 474 U.S. 193, 106 S. Ct. 496, 88 L. Ed. 2d 507 (1985) Collie v. Kendall, 220 F.3d 585 (5th Cir. 2000) Cooper v. Parrish, 203 F. 3d 937 (6th Cir. 2000) Cornforth v. Howard, 98 F.3d 1349 (10th Cir. 1996) Dean v. Shirer, 547 F. 2d 227 (4th Cir. 1976) Dennis v. Sparks, 449 U.S. 24 (1980) Depiero v. City of Macedonia, 180 F. 3d 770 (6th Cir. 1999) Eades v. Sterlinske, 810 F.2d 723 (7th Cir. 1987) Evans v. Artek Systems Corp., 715 F.2d 788 (2d Cir. 1983) Federal Dep. Ins. Corp. v. United States Fire Ins. Co., 50 F.3d 1304 (5th Cir. 1992) Forrester v. White, 484 U.S. 219 (1988)... 14, 17, 20, 27 Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir. 1982) Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) Harris v. Deveaux, 780 F. 2d 911 (11th Cir. 1986) v

7 Harry v. Lauderdale County, 212 F. App x 344 (5th Cir. 2007)... 17, 22, 23 Holeman v. Elliott, 732 F. Supp. 726 (S.D. Tex. 1990) Holloway v. Walker, 765 F.2d 517 (5th Cir. 1985) Horaist v. Doctor s Hosp. of Opelousas, 255 F.3d 261 (5th Cir.2001) Imbler v. Pachtman, 424 U.S. 409 (1976)... 11, 13 In re Multi-Piece Rim Products Liability Litigation, 612 F.2d 377 (8th Cir. 1980) Kemp ex rel. Kemp v. Perkins, 2008 WL (N.D. Miss. Sept. 15, 2008) Kennedy v. Mind Print (In re ProEducation Int l, Inc.), 587 F.3d 296 (5th Cir. 2009) Kent v. Scamardella, 2007 WL (S.D.N.Y. 2007) Lenard v. Mississippi, 2007 WL (S.D. Miss. Sept. 26, 2007)... 23, 43 Liberty Mut. Ins. Co. v. Tedford, 644 F. Supp. 2d 753 (N.D. Miss. 2009) Malina v. Gonzales, 994 F.2d 1121 (5th Cir. 1993)... 17, 18, 22 McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972) McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) McGee v. Hunter, 2003 WL (E.D. La. 2003)... 28, 29 Mireles v. Waco, 502 U.S. 9 (1991)... passim Mitchell v. McBryde, 944 F.2d 229 (5th Cir. 1991)... 10, 26 No CV-2965-G, 2004 WL Optyl Eyewear Fashion Int l Corp. v. Style Cos., 760 F.2d 1045 (9th Cir. 1985) Patterson v. Kidd, 2014 WL (S.D. Miss. Sept. 24, 2014) Pierson v. Ray, 386 U.S. 547 (1967)... 13, 14, 29 Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985) Roberts v. Williams, 302 F. Supp. 972 (N.D. Miss. 1969) Siegert v. Gilley, 500 U.S. 226 (1991) Silvers v. Google Inc., 2007 WL (S.D. Fla. 2007) Stump v. Sparkman, 435 U.S. 349 (1978)... passim Valley Bail Bonds v. Budeski, 2014 WL (D. Mont. Sept. 5, 2014) Young v. Biggers, 938 F.2d 565 (5th Cir.1991) vi

8 STATE CASES Bell v. McKinney, 63 Miss. 187 (1885) Bell v. Mississippi Dep t of Human Servs., 126 So. 3d 999 (Miss. Ct. App. 2013) Capitol Stages, Inc. v. State ex rel. Hewitt, 128 So. 759 (Miss. 1930) Covington Cnty. Sch. Dist. v. Magee, 29 So. 3d 1 (Miss. 2010) Davenport v. Hertz Equip. Rental Corp., 187 So. 3d 194 (Miss. Ct. App. 2016) Dep t of Human Servs. on Behalf of Adams v. Rains, 626 So. 2d 136 (Miss. 1993) DeWitt v. Thompson, 192 Miss. 615, 7 So.2d 529 (1942) Dunn Const. Co. v. Craig, 2 So. 2d 166 (Miss. 1941) Fairley v. George Cty., 800 So.2d 1159 ( 4) (Miss. 2001) Farris v. State, 764 So. 2d 411 (Miss. 2000)... 16, 25 Gregory v. State, 96 So. 3d 54 (Miss. Ct. App. 2012)... 39, 41 Harmon v. Regions Bank, 961 So. 2d 693 ( 24) (Miss. 2007)... 46, 47 Havard v. Sumrall, 194 So. 3d 188 (Miss. Ct. App. 2016) Hinds Cnty. v. Perkins, 64 So.3d 982 ( 11) (Miss. 2011) Howell v. State, No CA SCT, 2014 WL (Miss. Oct. 9, 2014) Loyacono v. Ellis, 571 So. 2d 237 (Miss. 1990)... passim Martindale v. Hortman Harlow Bassi Robinson & McDaniel PLLC, 119 So. 3d 338 (Miss. Ct. App. 2012) Mississippi Comm n of Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997)... 14, 15, 28 Mississippi Comm n on Judicial Performance v. Shoemake, 191 So. 3d 1211 (Miss. 2016)... 7 Mitchell v. City of Greenville, 846 So.2d 1028 ( 8) (Miss. 2003) Pride v. Pride, 154 So. 3d 70 (Miss. Ct. App. 2014) Spears v. Fourth Court of Appeals, 797 S.W.2d 654 (Tex. 1990) Vail v. City of Jackson, 40 So. 2d 151 (Miss. 1949) vii

9 Vinson v. Prather, 879 So. 2d 1053 (Miss. Ct. App. 2004)... 28, 43, 45 Wheeler v. Stewart, 798 So. 2d 386 (Miss. 2001)... 24, 29, 31, 32 Wigington v. McCalop, 191 So. 3d 124 (Miss. 2016) STATE STATUTES MISS. CODE ANN MISS. CODE ANN (f) MISS. CODE ANN (2) MISS. CODE ANN , 31 MISS. CODE ANN (1)(a) MISS. CODE ANN (1)(d) MISS. CODE ANN , 25 viii

10 RESTATEMENT OF THE ISSUES 1. Because Judge David Shoemake is entitled to absolute judicial immunity, the Chancery Court of Simpson County properly dismissed the causes of action asserted against him and certified the dismissal pursuant to Mississippi Rule of Civil Procedure 54(b). 2. With absolute judicial immunity being a threshold question that should be resolved as early in the proceedings as possible, it was appropriate for the Chancery Court of Simpson County to stay discovery pending a ruling on Judge Shoemake s immunity motion to dismiss. 3. The Chancery Court of Simpson County correctly rejected Appellant Newsome s attempt to disqualify the Attorney General s Office from representing Judge Shoemake because the motion was asserted without a good faith basis in law or fact and was interposed for the improper purpose of harassment and delay. 4. Appellant Newsome s frail attempt at getting the Chancery Court of Simpson County to set aside and vacate its prior orders on the motion to stay and motion to disqualify was rightfully denied. 1

11 STATEMENT OF THE CASE A. Overview In early 2015, Appellant Marilyn Newsome ( Newsome ), individually and in her capacity as conservator/conservatrix of Victoria Denise Newsome, filed a shotgun complaint alleging an array of violations of federal and state law in chancery court. See generally ROA The purported violations arose out of alleged actions taken by several different defendants during the conservatorship proceedings involving Newsome s daughter, Victoria Newsome. As relief for these alleged violations of law, Newsome sought monetary damages, including actual and punitive damages and prejudgment interest and post-judgment interest and all costs related to this civil action. 2 See ROA The various claims were pursued against five separate defendants. ROA.13. The five defendants originally sued by Newsome are as follows: Keely McNulty. Attorney Keely McNulty ( McNulty or attorney McNulty ) was the original attorney for Marilyn in the conservatorship proceeding. See ROA.14. At some point, McNulty apparently was appointed guardian ad litem for Victoria. See ROA.18. The Complaint takes issue with McNulty s representation, and McNulty filed a motion to withdraw as counsel and guardian ad litem in See generally ROA ROA signifies the Record on Appeal. The Supplemental Record on Appeal is designated as Supp. ROA. And the transcript of the oral argument in chancery court is designated as ROA Vol. II, Oral Argument. 2 As background, Newsome later filed an amended complaint. In the chancery court, Judge Shoemake did not object to Newsome amending her complaint because nothing in either the original or amended complaint set forth a cognizable action against Judge Shoemake. 2

12 Judge Joe Dale Walker. The matter related to the conservatorship originally was assigned to then chancery court judge Joe Dale Walker ( Walker ). See ROA The Complaint alleges that Walker acted impermissibly and entered several ex parte orders. See generally ROA Also, and according to the Complaint, Walker s nephew is defendant Chad Teater, the owner of C.T. Construction. ROA.17. C.T. Construction is the company that allegedly was approved to construct a home for Marilyn and Victoria. ROA.17. Chad Teater. The Complaint alleges that Chad Teater ( Teater ) is the owner of C.T. Construction and also the nephew of Walker. ROA.17. Allegedly, Walker ordered the purchase of real property for the purpose of building a home for Marilyn and Victoria. ROA.16. According to the Complaint, Teater is Walker s nephew, and the two schemed to have Teater s business be the one chosen for the construction of the home. See generally ROA Peoples Bank. The Complaint maintains that Marilyn Newsome established a checking account at Peoples Bank ( Peoples Bank or the bank ) for the conservatorship. ROA.16. Newsome alleges that the bank did not have authority to negotiate checks on the conservatorship account, and that the bank did not require Marilyn s signature on any of the checks negotiated on the conservatorship account. ROA.16. Chris Dunn. Chris Dunn ( Dunn ) was an employee of Peoples Bank and was, at all times relevant, allegedly acting within the scope and course of his employment with 3

13 the bank. ROA.16. Dunn and Peoples Bank allegedly failed to require Marilyn s signature on the checks related to the conservatorship account. ROA.16. Judge David Shoemake. Chancellor David Shoemake ( Judge Shoemake ) also was named as a defendant although many of the allegations in the state-court complaint were not directed at actions taken by Judge Shoemake. 3 See generally ROA Judge Shoemake is a duly-elected Chancery Court Judge for the Thirteenth Chancery District in Mississippi. See generally ROA According to the Complaint, Walker transferred the conservatorship matter to Judge Shoemake for the purpose of Judge Shoemake approving and accepting bids for the construction of the home for Marilyn and Victoria because apparently the owner of C.T. Construction, the company with the lowest bid, is Defendant Teater, Walker s nephew. ROA.17. Appellant goes on to aver that Shoemake entertained and executed a number of ex parte orders during the course of the conservatorship proceeding. See generally ROA B. Concise Factual Background On April 13, 2010, attorney McNulty filed a petition on behalf of Marilyn requesting that Marilyn be appointed conservator of the person and estate of her daughter, Victoria. ROA On June 24, 2010, Marilyn and others, as joint petitioners, filed an Amended Petition for Appointment of Conservator, apparently without leave of court, 3 As noted in the lower court, Judge Shoemake vehemently denies the allegations levied against him. Indeed, most, if not all, of the factual allegations are patently false and riddled in error. However, Judge Shoemake is well aware that the well-pled facts must be construed as true at the motion to dismiss stage. As the lower court found, these facts, even when construed as true, do not state a plausible claim for relief against Judge Shoemake, under any law. 4

14 seeking to have Marilyn appointed as conservator of the estate and person of Victoria. ROA Marilyn was appointed conservator/conservatrix of Victoria in July 2010, and Letters of Conservatorship were issued to Marilyn on July 21, ROA.14. According to the Complaint, Marilyn continues to serve in this capacity to date. ROA.14. This conservatorship apparently was necessitated by Victoria s medical condition and the compromise of a three million dollar medical malpractice claim. ROA.14. On January 10, 2011, Marilyn filed a Petition for Authority to Compromise and Settle Disputed Claim, For Approval and Establishment of Trust, and For Other Relief seeking authority to compromise and settle Victoria s medical malpractice claim and disburse the three million dollar settlement. ROA.15. Shortly thereafter, Walker entered a decree authorizing Marilyn to compromise the malpractice claim and disburse the proceeds. See ROA Marilyn then established a checking account at Peoples Bank for the conservatorship. ROA.16. In his decree, Walker allegedly did not approve the purchase of a home as requested by Marilyn. ROA.16. Instead, on March 31, 2011, Walker allegedly entered an ex parte order ordering, among other things, the purchase of real property to build a home and for monies to be deposited into the conservatorship account to pay for the purchase of the real estate and the construction of the home. ROA.16. According to the Complaint, McNulty continued to prepare, and Walker continued to execute, other ex parte orders related to the conservatorship at this time. See generally ROA Newsome next alleges that, on July 22, 2011, Walker signed an ex parte order transferring the case to Judge Shoemake for the purpose of approving and accepting bids 5

15 for the construction of the home because apparently the owner of C.T. Construction, the company with the lowest bid, is Defendant Teater, Walker s nephew. ROA.17. Allegedly, Judge Shoemake executed an order adjudicating that C.T. Construction submitted the lowest bid..., authorizing Marilyn to accept said bid for construction of the home, and transferring the case back to Walker. ROA.17. Thereafter, on July 28, 2011, the Complaint maintains that Shoemake executed another ex parte order approving a Construction Management Agreement of C.T. Construction and authorized Marilyn to execute said agreement and make payments per the agreement. ROA.17. Over a year later, on January 20, 2012, Newsome contends that Walker executed another ex parte order appointing attorney McNulty as guardian ad litem for Victoria. ROA.18. Subsequent to this, McNulty allegedly filed a petition on behalf of Marilyn requesting approval of an additional $23,000 to reimburse C.T. Construction for materials stolen from the construction site. ROA.18. On the same day, McNulty allegedly filed a show cause petition as guardian ad litem against Marilyn, requesting Marilyn show why she should not be held in contempt of court for failure to comply with her duties as conservator of Victoria. ROA According to the Complaint, McNulty again presented an ex parte order to Judge Shoemake on January 25, 2012, requesting the court authorize the $23,000 payment of C.T. Construction for the stolen materials. ROA.19. Newsome avers that Judge Shoemake executed this ex parte order, and the Complaint contends that other ex parte orders thereafter were entered by Walker. See ROA.19. 6

16 Eventually, in April of 2012, attorney McNulty filed a motion to withdraw as counsel for Marilyn and as guardian ad litem for Victoria, and this motion was granted. See ROA Newsome maintains, however, that even after McNulty filed her motion to withdraw, she continued to file petitions on behalf of Marilyn. See ROA Subsequently, McNulty then allegedly filed an amended motion to withdraw on May 8, 2012, and Walker entered an ex parte order allowing McNulty to withdraw on May 14, See ROA Thereafter, on October 11, 2013, Walker and Judge Shoemake allegedly entered a joint order of recusal from the conservatorship litigation. ROA.25. According to the Complaint, after transmittal of that joint order, Walker and Shoemake instructed the Chancery Clerk to disregard the Order of Recusal and omit it from the court file. ROA.25. Thereafter, Walker and Judge Shoemake executed separate orders of recusal. 4 ROA.25. C. Procedural Background After the recusal orders from Walker and Judge Shoemake, Judge Hollis McGehee was assigned to proceed over the conservatorship proceeding. ROA.25. And when Newsome filed her complaint for damages, she filed it in the same cause number as the 4 Eventually, Joe Dale Walker and Chad Teater pled guilty and were sentenced to five (5) months imprisonment and five (5) months home confinement, followed by two (2) years term of supervised release for their obstruction of the U.S. Attorney s investigation into the administration of the Conservatorship of Victoria Newsome. See ROA The Judicial Performance Committed recommended Judge Shoemake s removal from office for his perjury before the Commission. ROA.27. The Mississippi Supreme Court eventually ordered that Judge Shoemake shall be publicly reprimanded, shall be suspended from office for a term of thirty days without pay, shall pay a fine of $2,500, and shall pay costs in the amount of $5, See Mississippi Comm n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1212 (Miss. 2016). 7

17 conservatorship. Before any of the named defendants moved to sever the separate damages action, Judge McGehee sua sponte severed the claim for damages. See ROA Vol. II, Oral Argument at p. 10. Judge Gerald Martin then was assigned to proceed over the instant damages cause of action. See ROA Vol. II, Oral Argument at p. 10. Judge Martin entered a recusal order shortly thereafter. See ROA Vol. II, Oral Argument at p. 10. The Mississippi Supreme Court then appointed Special Chancellor James Bell to proceed over the case. See ROA Vol. II, Oral Argument at pp After Judge Bell was assigned to the case, several motions were filed by the parties. Because Newsome s appellate brief discusses a variety of motions ruled on by Judge Bell without providing the necessary context, Judge Shoemake briefly addresses the motions decided by Judge Bell that Newsome takes issue with in this appeal: * Motion to Dismiss by Judge Shoemake. Judge Shoemake filed a motion to dismiss all claims asserted against him based on the well-settled doctrine of judicial immunity. After full briefing and oral argument, Judge Bell granted Judge Shoemake s motion to dismiss. Judge Bell then entered a final order on this motion and expressly certified it pursuant to Mississippi Rule of Civil Procedure 54(b). See ROA (Order and Opinion). * Motion to Stay Discovery by Judge Shoemake. At the same time Judge Shoemake filed his motion to dismiss, he also filed a motion to stay discovery pending the ruling on the motion to dismiss. See Supp. ROA.1-7, * Motion to Dismiss by Joe Dale Walker. Joe Dale Walker, represented by separate counsel, also moved to dismiss based on judicial immunity. After full briefing and oral argument, Judge Bell granted Walker s motion to dismiss. See ROA * Motion to Disqualify the Attorney General by Newsome. After Judge Shoemake moved to dismiss the case based on judicial immunity, Newsome filed a curious motion to disqualify. Judge Bell rejected such harassing 8

18 litigation tactics utilized by Newsome and rightfully denied the motion to disqualify. See ROA.11. * Motion to Vacate by Newsome. After the chancery court denied the disqualification motion and stayed discovery, Newsome filed yet another curious motion. She moved to set aside and vacate those court orders. The lower court denied the motion to set aside and vacate. See ROA SUMMARY OF THE ARGUMENT On appeal, Newsome employs a common tactic of litigants facing uphill battles on the law. Newsome inundates the Court with misdirected arguments and inapposite factual allegations, hoping the Court will be distracted from the quite simple and pertinent legal issue before it that of absolute judicial immunity. Just as these superficial tactics failed Newsome in lower court, they also do not take her where she needs to go on appeal. This especially is true given that Newsome s arguments collide directly with the fundamental doctrine of judicial immunity. This immunity that must be afforded to Judge David Shoemake is not qualified it is absolute. Because of the absolute nature of this doctrine, it is said to be only subject to two narrow exceptions: (i) judges are not entitled to immunity for non-judicial actions, i.e., for actions that are administrative rather than judicial in nature; and (ii) a judge is not absolutely immune for his judicial actions if the judge acts in the clear absence of all jurisdiction. Neither of these exceptions are triggered here. To be sure, the allegations against Judge Shoemake center on Shoemake s execution of court orders. And Newsome does not (because she could not) legitimately dispute that the entry of orders is a judicial act. Indeed, Newsome concedes as much in her opening brief, noting that the entire focus of this appeal is based on judicial 9

19 conduct[.] See App. Br. at 2. Because the complained of judicial actions were strictly exercised in Judge Shoemake s judicial capacity as a Chancery Court Judge, Newsome reaches only a dead end with her attempt to invoke the first exception to immunity. No better is Newsome s argument that Judge Shoemake acted in the clear absence of all jurisdiction when he entered the complained-of orders. In Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990), the Mississippi Supreme Court reasoned that to determine the existence of judicial immunity one must look to whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him. Id. (emphasis supplied); Stump v. Sparkman, 435 U.S. 349 (1978). Here, it is beyond cavil that Judge Shoemake had jurisdiction over the subject matter before him at the time of the conduct complained about in Newsome s complaint. The action pending was a conservatorship proceeding in which the Chancery Court of Simpson County properly was vested with jurisdiction. In her appellate brief, Newsome makes no serious argument to the contrary. Instead, the brief merely criticizes the orders entered by Shoemake and makes passing references to a supposed conspir[acy]. See App. Br. at 26. Yet it is axiomatic that a judge s immunity from suit is so absolute that it cannot be defeated by an allegation that the judge acted in a malicious, corrupt, or patently erroneous manner or even pursuant to a conspiracy. See, e.g., Stump, 435 U.S. at 356; Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991). The judicial immunity doctrine exists in such an absolute and broad form because it is an essential component of judicial independence for both state and federal 10

20 judiciaries. See, e.g., Stump, 435 U.S In fact, the importance of the judicial immunity doctrine extends beyond this one lawsuit, and beyond Judge Shoemake. The doctrine exists in absolute form to vindicate the rights of all judges in Mississippi past, present, and future. No matter: Newsome continues to pay only short shrift to the immunity doctrine in her appellate brief. Indeed, Newsome barely cites to the relevant legal standards for judicial immunity let alone does she ever apply them. The bulk of Newsome s argument, in fact, consists of a paternalistic narrative about how this Court should simply abolish the doctrine and establish a new precedent regarding judicial immunity. See App. Br. at 26. With due respect to Newsome, urging the Court to refashion a doctrine as solidly established as judicial immunity is inappropriate and plainly unfit. See Imbler v. Pachtman, 424 U.S. 409 (1976) (noting that few doctrines were more solidly established at common law than the immunity of judges from liability for acts committed within their judicial discretion, as this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). ). And because such an argument falls so out of step with core immunity principles, it may be dispensed with quickly. So, too, may the additional arguments advanced by Newsome at the end of her brief. For example, Newsome argues that the chancery court erred in staying discovery and denying Newsome s motion to disqualify the Attorney General as counsel for Shoemake. In urging such contentions, though, Newsome never actually applies the governing and specific legal standards nor does she ever provide a straightforward 11

21 explanation of how those standards warrant reversal. Indeed, Newsome s contentions regarding the stay of discovery and denial of her disqualification motion amount to nothing more than throwaway arguments with few citations to authority. In short, the Chancery Court of Simpson County got the issue exactly right in dismissing the damages action against Judge David Shoemake. Newsome s appeal presents no opportunity for an alternate disposition of the case, and the lower court s decision must be affirmed. ARGUMENT I. The Chancery Court Properly Determined That The Doctrine Of Judicial Immunity Bars All Claims Against Judge David Shoemake. A. Judicial immunity is absolute and must be conferred to Judge Shoemake. The starting point for the Court s analysis is the type of immunity at issue. Judicial immunity is not qualified it is absolute. Judicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial functions. Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994); see also Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990). The damages claims levied against Judge Shoemake fall precisely within the scope of the immunity doctrine, and this is true under both Mississippi state and federal law. The proposition of absolute judicial immunity is a long-standing one that enjoys acceptance in federal and state history. In fact, the United States Supreme Court has gone so far to avow that few doctrines were more solidly established at common law than the immunity of judges from liability for acts committed within their judicial discretion, as 12

22 this Court recognized when it adopted the doctrine in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). Imbler v. Pachtman, 424 U.S. 409 (1976); see also Pierson v. Ray, 386 U.S. 547, (1967). The recognition of the doctrine in Mississippi dates almost as far back as federal law, as this State s courts have recognized the absolute nature of the doctrine of judicial immunity for more than a century. See, e.g., DeWitt v. Thompson, 192 Miss. 615, 7 So.2d 529 (1942); Bell v. McKinney, 63 Miss. 187 (1885). And the courts in Mississippi more recently have confirmed that [t]he doctrine of judicial immunity is fully recognized in Mississippi. Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990) (citing Roberts v. Williams, 302 F. Supp. 972 (N.D. Miss. 1969). Judicial immunity not only is an engrained and well-settled doctrine, but it also is an essential component of judicial independence a point that the United States Supreme Court has made repeatedly: [I]t is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful. Bradley v. Fisher, 80 U.S. 335, 347 (1872); see, e.g., Mireles v. Waco, 502 U.S. 9, 10 (1991). If judges could be held personally liable for making erroneous decisions, the resulting avalanche of suits would lead judges to avoid difficult or potentially unpopular decisions and act with an excess of caution or otherwise to skew their decisions in ways 13

23 that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct. Forrester v. White, 484 U.S. 219, , 223 (1988). Judges are expected to engage in principled and fearless decision making based upon their understanding of the law and the facts, and without worrying about lawsuits filed by discontented parties. Pierson, 386 U.S. at Judicial immunity, therefore, reflects the long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993). 5 The importance of judicial immunity extends beyond its application in one suit or to one judge. Indeed, a judge s immunity from suit is so absolute that it cannot be defeated by even an allegation that the judge acted in a malicious, corrupt, or patently erroneous manner. See, e.g., Stump v. Sparkman, 435 U.S. 349, 356 (1978). The absolute nature of judicial immunity is a practical necessity, as the ease of alleging bad faith would make a qualified good faith immunity virtually worthless. Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985). The Mississippi Supreme Court has echoed this point in upholding the doctrine of judicial immunity [ ], even when the judge clearly exceeds the jurisdiction of the office or acts maliciously or corruptly. Burkes v. Waggoner, No. CIV.A.3:06CV142HTWLR, 2008 WL , at *4 (S.D. Miss. Mar. 12, 2008) aff d, 5 See also Loyacono, 571 So. 2d at 238 ( Public policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions... this Court fully recognizes that the best interests of the people and public order require that judges be immune from civil liability. There are other remedies for the correction of such behavior. ); Mississippi Comm n of Judicial Performance v. Russell, 691 So. 2d 929, 947 (Miss. 1997) ( [T]he primary remedy available to those who believe a judge has acted either contrary to or in excess of his/her authority is to file a complaint with the Commission. ). 14

24 301 F. App x 390 (5th Cir. 2008) (citing Russell, 691 So. 2d at 947 and Loyacono, 571 So. 2d at 238). In delineating the immunity doctrine, courts in Mississippi have relied on federal case law for guidance. For instance, in Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990), the Court turned to the oft-cited case of Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) for assistance in its analysis. Because of the reliance on federal interpretation, an examination of certain Supreme Court and pertinent district and appellate court cases is important, especially in light of the federal claim urged in this matter through 42 U.S.C A logical starting point for the analysis is the Stump v. Sparkman decision relied on by the Mississippi Supreme Court in Loyacono. In Stump v. Sparkman, the United States Supreme Court cleared away any and all debris possibly obscuring the considerably broad scope of the judicial immunity doctrine. There, an Indiana circuit court judge approved a mother s ex parte petition to have her somewhat retarded minor daughter sterilized. Stump, 435 U.S. at 351, 98 S.Ct. at The daughter was told that she was having an appendectomy, and it was not until after the daughter was married some two years later that she learned of the true nature of the operation. Id. at 353, 98 S. Ct. at Upon this discovery, both she and her husband sued the judge, among others. Id. Even in a case with facts such as those presented in Stump, the Supreme Court did not budge on the absolute nature of judicial immunity. To the contrary, in conferring immunity, the Stump Court explained that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in 15

25 excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Id. at , 98 S. Ct. at 1104, 55 L.Ed.2d at 338 (quoting Bradley v. Fisher, 13 Wall 335, 347, 20 L. Ed. 646 (1872)). In applying Stump, the Mississippi Supreme Court in Loyacono drew a clear distinction between excess of jurisdiction and a complete absence of jurisdiction. Loyacono, 571 So. 2d at 238 (citing Bradley, 13 Wall at , 20 L.Ed. at 651). The Court noted that to determine the existence of judicial immunity one must look to whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him. Id. (citing Stump, 435 U.S. at 356, 98 S. Ct. at 1105). Here, it is beyond cavil that Judge Shoemake had jurisdiction over the subject matter before him at the time of the conduct complained about in Newsome s Complaint. The action was a conservatorship proceeding in which the chancery court, of course, properly was vested with jurisdiction. See Farris v. State, 764 So. 2d 411, 423 (Miss. 2000); MISS. CODE ANN Thus, under the straightforward test set forth by the Mississippi Supreme Court, Judge Shoemake must be conferred immunity for the state law claims levied against him. To be sure, an analysis of apposite federal law only confirms this as true, as well as proves that Judge Shoemake also must be conferred immunity for the damages action urged against him pursuant to 42 U.S.C Given the broad grant of judicial immunity, the doctrine is said to be subject to only two narrow exceptions. Neither of these exceptions is triggered in this case. 16

26 B. Neither of the highly narrow exceptions to judicial immunity are applicable. There are only two very narrow exceptions to judicial immunity. First, judges are not entitled to immunity for non-judicial actions, i.e., for actions that are administrative rather than judicial in nature. See Mireles, 502 U.S. at 11-12; Forrester, 484 U.S. at 230 (holding that a judge is not immune from a discrimination suit arising from his dismissal of a probation officer). Second, a judge is not absolutely immune for his judicial actions if the judge acts in the clear absence of all jurisdiction. Stump, 435 U.S. at ; see Harry v. Lauderdale County, 212 F. App x 344, 347 (5 th Cir. 2007). Each exception is discussed, but neither applies. i. First Exception: Non-Judicial Actions. The Fifth Circuit has employed a four-part test to determine whether a judge s actions are judicial in nature. That test is as follows: (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge s chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arise directly out of a visit to the judge in his official capacity. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993) (citing McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)). The four (4) factors are to be broadly construed in favor of immunity, and immunity may be afforded even when one of the factors is not met. Id. [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 17

27 of the parties, i.e., whether they dealt with the judge in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362 (1978). If the challenged act is a function normally performed by a judge, the judge s action must be considered judicial for purposes of the immunity analysis. Id.; see also Mireles, 502 U.S. at 12-13; Malina, 994 F.2d at Here, all four factors point only toward immunity. Before delving into an analysis of each factor, it is important to distinctly identify the complained of actions taken by Judge Shoemake, as opposed to the myriad of other assertions levied against the additional named defendants. The factual claims against Judge Shoemake arise out of the following (judicial) actions: 19. On July 22, 2011, Walker signed another ex parte order transferring the case to Shoemake for the limited purpose of approving and accepting bids for the construction of the home because apparently the owner of C.T. Construction, the company with the lowest bid, is Defendant Teater, Walker s nephew... One the same day, Shoemake executed an order adjudicating that C.T. Construction submitted the lowest bid of $273, and transferring the case back to Walker. See ROA.17 (Pl. Compl. at 19). 20. Again without involvement or a petition being filed by Marilyn, on July 28, 2011, after Shoemake executed the order transferring the case back to Walker, Shoemake executed another ex parte order approving a Construction Management Agreement of C.T. Construction and authorized Marilyn to execute said agreement and make payments per the agreement. See ROA.17 (Pl. Compl. at 20). 25. On January 25, 2012, McNulty presented an ex parte order to Shoemake wherein the court authorized the $23, payment to C.T. Construction for allegedly stolen materials. See ROA.19 (Pl. Compl. at 25) McNulty called contractors and asked them to submit bids, then McNulty presented an ex parte order to Shoemake representing that she had selected the lowest bid. See ROA.21 (Pl. Compl. at 33). 39. Another ex parte order signed by Shoemake dated March 26, 2012 nunc pro tunced to August 2, 2011 appears in the court record that is not stamped filed. 18

28 See ROA.23 (Pl. Compl. at 39). 46. Without notice to the parties, Walker and Shoemake entered a joint order of recusal dated October 11, 2013 at the direction of the Judicial Performance Commission. After transmittal, Walker and Shoemake instructed the Chancery Clerk to disregard the Order of Recusal and omit it from the court file. On October 14, 2013, Walker and Shoemake executed separate Orders of Recusal with one order being filed after the appointment of the Honorable Hollis McGehee. See ROA.25 (Pl. Compl. at 46). These same allegations are re-urged on appeal. Indeed, Newsome contends as follows in her opening brief: The entire focus of this appeal is based on judicial conduct... See App. Br. at 2. On July 22, 2011, Walker signed another ex parte order transferring the case to Shoemake... On the same day, Shoemake executed an order adjudicating that C.T. construction submitted the lowest bid.... See App. Br. at 8. Again without involvement or a petition being filed by Marilyn, on July 28, 2011, after Shoemake executed the order transferring the case back to Walker.... See App. Br. at McNulty presented an ex parte order to Shoemake.... See App. Br. at 12. Another ex parte order signed by Shoemake dated March 26, See App. Br. at 14. Without notice to the parties and without any pleading being filed, Walker and Shoemake entered and filed a joint order of recusal dated October 11, After transmittal, Walker and Shoemake instructed the Chancery Clerk to disregard the Order of Recusal and omit it from the court file. On October 14, 2013, Walker and Shoemake executed separated Orders of Recusal.... See App. Br. at 17. Still more, Newsome reiterated during oral argument in the lower court that the claims against Judge Shoemake surround the execution of chancery court orders. For example, counsel informed the court as follows: 19

29 The Court: Mr. Stubbs: What actions other than the issuance of orders are you complaining about? Well, Judge, for instance, some of these orders got stuck in the court files. They were not docketed. They were just stuck into the court files. That s in there. See ROA Vol. II, Oral Argument p. 36. The allegations are also Mr. Shoemake signed an order on the $23,000 payment to CT Corporation.... And, you know, I mean, that s basically it, Your Honor. The complaint speaks for itself.... Quite obviously, Newsome s complaint does speak for itself, and it contravenes the immunity doctrine because the complained-of actions on the part of Shoemake all are judicial in nature. An analysis of the four factors utilized by the Fifth Circuit to analyze this first exception to immunity only proves as much. Factor One: Normal Judicial Function. Newsome s allegations against Judge Shoemake are largely, if not completely, self-defeating. The allegations center on Judge Shoemake s execution of court orders and an instruction to the chancery clerk regarding those orders. There can be no doubt that such actions were exercised strictly in Judge Shoemake s judicial capacity as a Chancery Court Judge. 6 While Newsome may claim that Judge Shoemake acted impermissibly when he 6 An example of an administrative act should prove helpful. In Forrester v. White, 484 U.S. 219, 229, 108 S. Ct. 538, 545, 98 L. Ed. 2d 555 (1988), a former probation officer filed a damages action against a state judge alleging that the judge demoted and terminated her employment on account of her gender in violation of the Equal Protection Clause. That was an administrative act. See id.; see also, e.g., Valley Bail Bonds v. Budeski, No. CV BLG-SPW, 2014 WL , at *5 (D. Mont. Sept. 5, 2014), appeal dismissed (Apr. 20, 2015) ( An example of an administrative act, which would not be considered judicial, is a judge s decision to fire a subordinate employee Meek v. County of Riverside, 183 F.3d 962, 968 (9th Cir.1999). ). 20

30 allegedly entertained and executed ex parte orders, it is an accepted and functionally important part of the immunity doctrine that it protects the righteous as well as the dishonest. Indeed, Judge Learned Hand explained this point of law long ago: to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949). In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books. Id. Factor Two: Acts Occurred in Courtroom or Appropriate Adjunct Spaces. This factor also supports the application of judicial immunity. The acts complained of concern the execution of orders that occurred during proceedings in front of Judge Shoemake and, more importantly, in front of the Simpson County Chancery Court. Factor Three: Center of Controversy. There is no dispute that the controversy centered on a case pending before the chancery court. Every action taken by Judge Shoemake occurred during the proceedings related to the conservatorship of Victoria Newsome. Newsome s state-court complaint concedes as much, as it states that [t]he complaint is based on and arises out of claims the conservator/conservatrix has against actions taken by Defendants in this conservatorship. See ROA.14 (Pl. Compl. at 8). Factor Four: Visit to Judge in Official Capacity. The same analysis discussed above equally is applicable to this factor. Judge Shoemake s actions all were taken in his 21

31 official capacity as a Chancery Court Judge for the State of Mississippi. Even if Judge Shoemake issued so-called ex parte orders, he nonetheless issued them in his official capacity, as ex parte orders are simply a type of order that judges, like Judge Shoemake, may issue. This factor thus too points only toward the application of judicial immunity. In sum, then, all four factors for the application of absolute judicial immunity are satisfied. Consequently, the lower court was right in determining that Newsome cannot clear the immunity hurdle by invoking the doctrine s first narrow exception. ii. Second Exception: Absence of All Jurisdiction. The second exception to absolute judicial immunity is purposely limited. At its core, it also amounts to the same exception discussed by the Mississippi Supreme Court in Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990). A judge is not absolutely immune for his judicial actions if the judge acts in the clear absence of all jurisdiction. Stump, 435 U.S. at The Fifth Circuit, like the Mississippi Supreme Court, has held that this prong essentially concerns subject matter jurisdiction. See Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982). [W]here a court has some subject-matter jurisdiction, there is sufficient jurisdiction for immunity purposes. Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir.1993) (citing Adams v. McIlhany, 764 F.2d 294, 298 (5th Cir. 1985)). The pertinent question then is one of authority in the broadest sense, and the case of Harry v. Lauderdale County, 212 F. App x 344, 347 (5th Cir. 2007) is instructive on why. In that case, the Fifth Circuit held that even where a state appellate court has overturned a judicial decision on the basis of no subject matter jurisdiction, the judicial 22

32 officer could not be denied absolute immunity for those actions. In its reasoning, the Court explained that [i]f this were the case, each and every time a judge decided an issue where an appellate court later found subject matter jurisdiction lacking, that judge would have no judicial immunity. Id. at 347. The Court further concluded that such a proposition was contrary to the concerns underlying absolute judicial immunity, a doctrine meant to ensure that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Id. at 347 (citing Mireles v. Waco, 502 U.S. 9, 10 (1991). Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990) also provides important guidance. There, the Mississippi Supreme Court, relying on federal law, noted that [t]here is a distinction between excess of jurisdiction and a complete absence of jurisdiction. Id. In order to determine the existence of judicial immunity one must look to whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him. Id. (emphasis added); see also Stump v. Sparkman, 435 U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331, 339 (1978)); Mireles v. Waco, 502 U.S. 9 (1991) (holding that [i]f judicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error... or was in excess of his authority. ); Lenard v. Mississippi, No. CIVA506CV176DCB-MTP, 2007 WL , at *2 (S.D. Miss. Sept. 26, 2007) ( Defendant Judge Smith s decision to hear the matter of revoking the plaintiff s probation, whether correct or not, was done in his normal function as a judge and was conducted by him in his official capacity. Accordingly, plaintiff s claims against Judge Smith are dismissed based on absolute 23

33 judicial immunity. ). 7 As the Mississippi Supreme Court in Loyacono reaffirmed, the focus is not on which judge the case randomly is assigned to at the start, but rather whether there was some subject matter jurisdiction over the pending matter. In other words, the central focus of the immunity doctrine is not on case assignment (i.e., Walker versus Shoemake) it is on the jurisdiction over the subject matter of whatever proceeding is before the court. See, e.g., Wheeler v. Stewart, 798 So. 2d 386, 392 (Miss. 2001) ( The key factor in determining whether judicial immunity exists is whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him.... Here it is undisputed that the Hattiesburg Municipal Court has subject matter jurisdiction over traffic offenses occurring in the City of Hattiesburg. ) (emphasis supplied); see also, e.g., Cornforth v. Howard, 98 F.3d 1349 (10th Cir. 1996) (noting that [t]he question of judicial immunity does not turn on the judge s authority to perform the specific act being challenged, but on the scope of the judge s jurisdiction in a broad sense ). This rudimentary point of law is one with which Newsome fails to grapple and continues to misapprehend. For instance, during oral argument in chancery court, counsel for Newsome informed the Court that the test for immunity is whether the judge acts outside his judicial authority[.] See ROA Vol. II, Oral Argument p. 8. But that, of course, is not the test nor is it equivalent to the proper standard of clear absence of all 7 Burkes v. Waggoner, No. CIV.A.3:06CV142HTWLR, 2008 WL , at *4 (S.D. Miss. Mar. 12, 2008) aff d, 301 F. App x 390 (5th Cir. 2008) ( For purposes of immunity, a judge must merely demonstrate some subject matter jurisdiction. [ ] Jurisdiction is broadly construed. ). 24