Grazzini-Rucki Reply Brief

No.
14-2569
In the
Wntteb
~tateti Qtourt
for the
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of ~ppeal~
Qtfrcuft
Sandra Grazzini-Rucki individually, et al.,

Plaintiffs-Appellants,
vs.
David L. Knutson, an individual, et al.,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MINNESOTA,
NO. 0:13-CV-2477
RESPONSE AND REPLY BRIEF OF APPELLANTS

Michelle Lowney MacDonald
MacDonald Law Firm, LLC
1069 So. Robert Street
West St. Paul, MN 55118
Telephone: (651) 222-4400
Facsimile: (651) 222-1122
Counsel for Appellants
March 4, 2015
Appellate Case: 14-2569
Page: 1
Date Filed: 03/04/2015 Entry ID: 4250770
CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1 and Eighth Circuit Local Rule 26.IA, Appellants
certify that they are not a non-governmental corporate party.
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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .............................................. i
TABLE OF AUTHORITIES ................................................................ iv
A. INTRODUCTION ..................................................................................... 1
B. ruDGE KNUTSON FAILED TO CARRY THE HEAVY BURDEN OF
PROVING THE AFFIMATIVE DEFENSE OF ABSOLUTE
IMMUNITY .............................................................................................. 3
1. Judge Knutson Bears The Burden of Proving Immunity ................ 3
2. Neither the District Court Nor Judge Knutson Have Analyzed
Historical Foundations for an Immunity of Accused Function .... .5
3. 3. The District Court Extended Immunity Based On Factors Not

Relevant to Judicial Immunity.......................................... 6
C. ruDGE KNUTSON'S ADMINSTRATIVE BEHAVIOR IN ASSIGNING
HIMSELF TO CERTAIN CASES IS NOT IMMUNE ............................ 7
D. ruDGE KNUTSON'S "LISTENING" PSYCHOTHERAPY SESSION
WITH THE GRAZZINI-RUCKI CHILDREN IS NOT A ruDICIAL
ACT ......................................................................................................... 11
E. MODERN FAMILY COURT JURISDICTION IS INFERIOR; IF IT HAS
IMMUNITY IT IS EXTREMELY NARROW ....................................... 14
4. Judge Knutson's Assertion ofBroad Immunity Lacks Authority ..... 15
F. THE DISTRICT COURT'S "ruDICIAL CAPACITY" SCOPE RELIED ON
ELEMENTS NOT RELEVANT TO ruDICIAL IMMUNITY ............. 18
G. THE DISTRICT COURT'S RELIANCE ON PIERSON V. RAY AND STUMP
V. SPARKMAJVWAS ERROR ................................................................ 19
111
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1. Section 1983 Does Not Require Proof of Malicious or Corrupt

Intent .............................................................................................. 19
2. Pierson and Sparkman Erroneously Extended Common Law Immunity to
Civil Rights Liability ................................................................................ 19
3. Pierson Incorrectly Analyzed Legislative Privilege Rather Than Judicial
Immunity................................................................. 20
4. Judicial Immunity is the Opposite of Legislative Privilege-Judges Are
Sovereigns Possessing Not "Rights" but Delegated Authority ... 23
5. Congress Expressly Intended to Abrogate Judicial Immunity ....... 26
CONCLUSION ................................................................................ 30
CERTIFICATE OF COMPLIANCE AND VIRUS SCANNING .................... 34
CERTIFICATE OF SERVICE ............................................................. 35
IV
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TABLE OF AUTHORITIES
CASES
Adams v. Mcllhany, 764 F.2d 294 (5th Cir. 1985) ................................................. 18
Adickes v. S. H. Kress & Co., 398 U.S. 144, 232 (1970) ........................................ 19
Affd, 1811 WL 1445 (1811) .............................................................................. 10,14
Ashe/man v. Pope, 793 F.2d 1072 (9th Cir. 1986) .................................................. 19

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................ 30
Bracci v. Becker, No. 1:11-CV-1473 MAD/RFT, 2013 WL 12.3810 at *6
(N.D.N.Y. Jan. 9, 2013)....................................................................................... 10
Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .......................................................... 4

Burns v. Reed, 500 U.S. 478 (1991) ................................................................ 3,15,17
Butz v. Economou, 438 U.S. 478, 516, 521 (1978) ................................................... 7
Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) ...................................... 18
Forrester v. White, 484 U.S. 219, 229 (1988) .......................................................... 7
Gentile v. State Bar ofNevada, 501 U.S. 1030, 1074 (1991) ................................. 24
Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974) ............................................... 18
Griffin v. Breckenridge, 403 U.S. 88, 99 (1971) ..................................................... 27
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............................................................ 30
Harper v. Merckle, 638 F.2d 848, 857 (5th Cir. 1981) ........................................... 18
Hoffman v. Harris, 511 U.S. 1060 (1994) ........................................................... 5,12
v
Page: 5
Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985) ........................................ 19
Imbler v. Pachtman, 424 U.S. 409 (1976) ......................................................... 11,15
Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) ..................................... 5,12
Kalina v. Fletcher, 522, U.S. 118, 132 (1997) .................................................... 5,16
Kilbourn v. Thompson, 103 U.S. 168 (1880) .......................................................... 22
King v. State Educ. Dep't, 182 F.3d 162 (2d Cir.1999) .......................................... 14
Lopez v. Vanderwater 620 F.2d 1229, 1236 (7th Cir. 1980) ................................... 11
Lynch v. Johnson, 420 F.2d 818 (1970) ............................................................. 10,18
Malley v. Briggs, 415 U.S. 335, 339-340 (1986) .............................................. 4,9,28
Marshall v. Gordon, 243 U.S. 521 (1917) .............................................................. 22
Martinez v. Winner, 800 F .2d 230, 231 (10th Cir. 1986) .................................... 8, 10
McAlester v. Brown, 469 F.2d 1280 (5th Cir. 1972)............................................... 18
Mireless v. Waco, 502 U.S. 9, 13 (1991) ................................................................ 18
Monell v. Department ofSocial Services, 436 U.S. 658, 665-94 703
(1978) ................................................................................................. 5,19,21,25,28
Monroe v. PApe, 365 U.S. 167, 172-85 (1961) .................................... 5,20,21,25,26
Myers v. Morris, 810 F.2d 1437, 1448 (8th Cir. 1987) ................................. 15,16,17
New York Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964) .............................. 23
Owen v. City ofIndependence, Mo., 445 U.S. 622,643 (1980) .............................. 28
Parent v. New York, 786 F. Supp. 2d 516, 532 (N.D.N.Y. 2011) ...................... 5,8,9
V1
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Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................. 30

People United for Children, Inc. v. City ofNew York, 108 F. Supp. 2d 275, 286
(S.D.N.Y. 2000) ................................................................................................... 14
Peterson v. Peterson, 24 Haw 239, 246 (1918) ...................................................... 14
Picking v. Pennsylvania R.R., 151F.2d240 (3rd Cir. 1945) .............................. 26,28
Pierson v. Ray, 386 U.S. 547, 559-62 (1967) ............................ 3,5,7,11,19,20,21,25
Phelps v. Sill, 1Day315, 327 (1804) ..................................................................... 15
Pulliam v. Allen, 466 U.S. 522, 543 (1984) .................................................. 21,25,29
Randall v. Brigham, 74 U.S. 523, 531 (1868) ........................................................ 14
Rehberg v. Paulk, 132 S.Ct. 1497, 1503 (2012) ....................................... 4,5,6,11,12
Reh'g, 583 F.2d 779 (5th Cir. 1978)........................................................................... 8
Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir. 1980)................................................. 8
Scheuer v. Rhodes, 416 U.S. 232, 249-50 (1974) ........................................... 5,12,25
Scott v. Stansfield, 3 Law Reports, Exchequer, 220 .......................................... 16,20
Slavin v. Curry, 574 F.2d, 1256, 1263-64 (5th Cir.) .................................................. 8
Sparks v. Duval Cnty Ranch Co., 604 F.2d 976 (5th Cir. 1979)................................ 8
Stump v. Sparkman, 435 U.S. 349, 362 (1978) ................................................. 3,9,19
Sparkman v. McFarlin, 601F.2d261, 267 (7th Cir. 1979) ....................................... ..
.................................................................................... 3,6,7,9,10,11,14,18,19,21,29
Tenney v. Brandhove, 341 U.S. 367 (1951) .................................................. 22,23,25

vu
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Theide v. Town of Scandia Valley, 217 Minn. 218, 226-27, 14 NW 2d 400,

406 (1944) ....................................................................................................... 24,25
Tower v. Glover, 467, U.S. 914, 920 (1984) ............................................................. 4

United States v. Mo"ison, 529 U.S. 598, 621 (2000) ............................................ 23
Yates v. Lansing, 5 Johnson 282, 291 (N.Y. Sup. Ct. 1810) 1810 WL 1044 ......... 14
Zahl v. Kosalasky, No. 8 Ciu, 8308 LTS, THK, 2011 WL 779784 (S.D.N.Y.
Mar. 3, 2011) .................................................................................................... 9,10
STATUTES
1983 ........................................................................................................... 4,5,13,25
20 USC 76cc......................................................................................................... 10
18 U.S.C. 242 ....................................................................................................... 26
OTHER AUTHORITIES
Minn. Const. Art 3, sec 1........................................................................................ 24
United States Constitution at Article I, Sec. 6, cl. 1 ............................................... 22
The Federalist No. 78 (A. Hamilton) (1788) .......................................................... 23
RULES
Fed. R. Civ. P. 56(c) .................................................................................................. 6
Fed. R. Civ. P. 8(c)(l) ............................................................................................... 3
Minn. Stat 148.88, Psychology Practice Act .......................................................... 12
Minn. Admin. Rules 7200 ....................................................................................... 12
vm
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OTHER AUTHORITIES
L. Friedman, Rights ofPassage: Divorce Law in Historical Perspective 63
OR. L. REV. 649, 667 (1984) ................................................................................ 13

Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations: The Need
for Systems-Level Outcome Assessments, 47 FAM. CT. REV. 286, 291 (2009) .... 13
Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of
Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234 (1975) .......................... 14

T. Flemming, J. Norby, The Minnesota Bill ofRights: Wrapt in the Old Miasmal
Mist, 7 HAMLINE L.REv. 194 (1984) .................................................................... 25

Note, Liability ofJudicial Officers Under Section 1983, 79 YALE L.J. 322, 322-328,
337 (1969) ("Yale Note") ..................................................................................... 25
Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871) ......................................... 26,27
Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) ...................................................... 27
Cong. Globe, 42nd Cong., 1st Sess. 186 (1871) 365-366 ......................................... 28
1X
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function
to determine that the function accused-testimony of a grand jury witness-enjoyed

immunity at common law. Id. at 1503-07.2
An officer's failure to prove up a common law analog is dispositive of the issue

regardless of countervailing policy considerations. Rehberg at 1502-03 ("We do not
simply make our own judgment about the need for immunity. We have made it clear that
it is not our role 'to make a freewheeling policy choice,' and that we do not have a
license to create immunities based solely on our view of sound policy."). Granting an
immunity absent this historical analysis is error. Scheuer v. Rhodes, 416 U.S. 232, 24950 (1974) ("These cases, in their present posture, present no occasion for a definitive
exploration of the scope of immunity available to state executive officials.").
2.
Neither the District Court Nor Judge Knutson Have Analyzed Historical
Foundations for an Immunity ofAccused Function
Judge Knutson proffered, and the district court undertook, no historical analysis of
whether any of the two dozen functions accused in the Amended Complaint were
functions that enjoyed judicial immunity at common law in 1871. The district court's
2
Similar historical analyses are apparent in Monroe v. Pape, 365 U.S. 167, 172-85
(1961); Monell v. Department of Social Services, 436 U.S. 658, 703 (1978); Pierson v.
Ray, 386 U.S. 547, 559-62 (1967) (Douglas, J., dissenting); Hoffman v. Ha"is, 511 U.S.
1060 (1994) (Thomas, J., dissenting from denial of cert.) ("The courts that have accorded
absolute immunity to social workers 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; Kalina v. Fletcher, 522 U.S. 118, 132 (1997)
(Scalia, J., concurring). See also Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000)
(finding no "firmly rooted tradition" of immunity for function of a private psychiatrist
employed by prison).
5
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sweeping Order proclaimed that Judge Knutson's "case management, his signing of
orders, the substance of his orders, and the trial proceeding" were all taken in a ')udicial
capacity." Order p 33. The district court reached this conclusion finding only that (1)
"Judge Knutson has not interacted with Plaintiff outside of his courtroom or his judicial
chambers" and (2) "the underlying family law case was within [his] jurisdictional
authority. Order p. 33. On these purported findings, the district court found Judge
Knutson acted in a "judicial capacity" and was thus immune. Id.
Analyzed below, this broad-brush "judicial capacity" scope and summary analysis fails to
"affrrmatively state" the defense, which was exclusively Judge Knutson's burden. Fed.R.
Civ.P. 8(c); Rehberg, supra.
3.
The District Court Extended Immunity Based On Factors Not Relevant to

Judicial Immunity
The district judge applied a "judicial capacity" scope of immunity that was far broader
than that provided in controlling Supreme Court authority. Immunity does not depend on
the act or actor, but on the nature of the accused act. Sparkman at 362. Immunity may
exist only if the accused act is both ( 1) ')udicial in nature" and (2) within statutory
subject matter jurisdiction. Id. The first "Judicial in nature" factor in turn depends on (a)
"the nature of the act itself, i.e., whether it is a function normally performed by a judge,"
and (b) "the expectations of the parties, i.e., whether they dealt with the judge in his
judicial capacity." Id. Not all official or authorized acts of a judge are "judicial acts"judges also perform administrative, ministerial, or other types of acts that are not entitled
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to judicial immunity. See, e.g., Forrester v. White, 484 U.S. 219, 229 (1988) (firing court
employees could be performed by administrator and thus not ''judicial").
The test to distinguish between ''judicial" and other types of acts is to analyze whether
the act can only be performed by a judge. See Ex parte Virginia, 100 U.S. 339, 340
(1879) (selection of jurors could be performed by administrator, thus not "judicial");
Forrester, supra; Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993) (court
reporters ''part of judicial function" yet not absolutely immune). Absolute immunity is
justified because judicial acts-and only judicial acts-are subject to standardized,
scrutinized proceedings, restrained by principles of law, and are subject to appellate
review. Butz v. Economou, 438 U.S. 478, 516 (1978); Pierson v. Ray, 386 U.S. 547, 564
n. 4 (1967). Because judicial acts are subject to such safeguards, the Supreme Court has
justified relieving the actors from liability for civil money damages. Id.
C.
Judge Knutson's Administrative Behavior in Assigning Himself to

Certain Cases is Not Immune
The district court's high-level "analysis" that Judge Knutson's "case management" and
"trial proceedings" extended immunity far beyond Sparkman's scope of immunity to
include behaviors which are clearly not judicial acts. As one example, Judge Knutson's
"case management" behaviors in assigning all Grazzini-Rucki cases, even allfature cases
with third parties, and those with the State of Minnesota, to himself is clearly an
administrative act because it cannot be reviewed on appeal, is not subject to law, is
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hief Administrator
statute prohibits a non-judge from undertaking the role of"chief administrator", meaning
that, like juror selection, it is an act that may be performed by a non-judge, and thus not a
judicial act. See Ex Parle Virginia, supra. A "Chief Administrator's" assignment
process is ministerial-the only "function" is to follow the assignment procedure.
Failure to abide the ministerial process is not an appealable event. A judge or
administrator is not applying law to facts. The process is not highly scrutinized. As
such, Parent reached its holding on analysis inconstant with controlling Supreme Court
authority, and is error.
Similarly, in Zahl v. Kosovsky, No. 08 CIV. 8308 LTS THK, 2011 WL 779784
(S.D.N.Y. Mar. 3, 2011) the district court considered a claim for immunity of a judge
who allegedly "manipulated the assignment system to take control of Plaintiffs case ....
" According to the district court in Zahl, the plaintiff "cite[ed] no relevant authority in
support of his conclusory assertions that such actions vitiated Justice Diamond's
jurisdiction to handle his case, and the Court has found none." Id. at *9. The Zahl
plaintiff apparently failed to identify any of the abundant relevant authorities including
Ex Parle Virginia, Forrester, and Antoine, supra, which provide means to distinguish
non-appealable acts of administrators from appealable acts only judges may perform.
Moreover, like the district court and Judge Knutson, the Zahl court improperly placed the
burden of proving immunity on the Plaintiff rather than the official. Malley at 339.
Page: 18
Zahl also erroneously relied on language in Stump v. Sparkman, 435 U.S. 349 (1978)
instructing courts to construe subject matter jurisdiction (the second element of
Sparkman's two-element immunity test) broadly. Zahl at *9. Sparkman's instruction

does not apply to the first "judicial act" element. Sparkman at 362. As above, the
Supreme Court has been "quite sparing" in extending immunity under the judicial act
element of the test. Buckley at 269. Zahl also focused analysis on failure to recuse when
faced with motion identifying conflict of interest. Id. Ruling on a motion is an act which
only a judge "normally" performs, and thus falls within Sparkman's 'Judicial act" scope.
Bracci v. Becker, No. 1:11-CV-1473 MAD/RFT, 2013 WL 123810, at *6 (N.D.N.Y. Jan.
9, 2013) affd, 568 F. App'x 13 (2d Cir. 2014) is derived from Martinez, Parent, and Zahl
and is error for the same reasons. Further, in Bracci the plaintiffs accused Judge
Mulvey's (a "chief administrative judge") failure to remove Judge Becker (the trial
judge) form the case, making Bracci more of a recusal case. Like Zahl, recusal requires
ruling on a motion-a judicial act. .
In both cases the courts found what they (incorrectly) identified as ')urisdiction"
based on statutes authorizing judges-as well as non-judge administrators-to assign
cases. Statutory empowerment goes to Sparkman's second "within the jurisdiction"
element of the immunity test-but is insufficient to satisfy the first, "judicial act"
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element. Sparkman, supra. 5 Judge Knutson repeats the error. Knutson Brf. at 29-30
(citations to Billingsley and Duty).
Judge Knutson's reliance on Hardy v. Nw. Mem'l Hosp., No. 93 C 1348, 1993 WL 85750,
at *2 (N.D. Ill. Mar. 22, 1993) is misplaced. Hardy erroneously analyzed judicial acts
under the test for prosecutorial immunity. Hardy cited Imbler v. Pachtman, applying the
"intimately related with the judicial phase of the criminal process" standard. Id. at *2.
Hardy failed to cite or analyze under judicial immunity precedents including Sparkman,
Pierson, Bradley, or Randall. Judges do not perform prosecutorial function, and thus the
immunity of a judge is lost if she performs such functions. Lopez v. Vanderwater, 620
F.2d 1229, 1236 (7th Cir. 1980) (finding judge performing functions of a prosecutor not
entitled to either judicial or prosecutorial immunity).
Finally, none of the authority relied on by Judge Knutson analyzed the critical
test-whether the function of assigning cases was a judicial act at 1871 common law.
Absent such analysis, the authority is error. Rehberg, supra.
D.
Judge Knutson's "Listening" Psychotherapy Session with the

Grazzini-Rucki Children is Not a Judicial Act
A simple example is that the Chief Justice of the United States is authorized by law to
serve as the Chancellor of the Board of Regents of the Smithsonian Institution. 20 U.S.C.
76cc. Such authorization does not convert such service to a judicial act. See, e.g.,
Lynch v. Johnson, 420 F.2d 818 (1970) ("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.") Id. at 820 (cited favorably in Sparkman at 370 n. 10).
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Judge Knutson concedes he conducted a "listening session" with the five Grazzini-Rucki
children "for the sole purpose" of facilitating psychotherapy of the children ---complying
with a "request from a court-appointed therapist for a structured family meeting."
During this psychotherapy session Judge Knutson harshly reprimanded and the children.
Days later two of them ran away from their home and have not been seen since.
Following Rehberg, the district court should have analyzed whether the function of
psychotherapy performed at the "listening session" was an immune function at 1871
common law. Rehberg at 1503. The district court's failure conduct this historical inquiry
is error sufficient to reverse. Scheuer at 249-50 (1974)
If the district court had conducted appropriate inquiry, it would fmd no tradition
for psychotherapy function at 1871 common law. Given that psychotherapy is a function
developed in the twentieth century, and is only legally performed by licensed
psychologists,8 it would seem unlikely that Judge Knutson could identify an 1871
common law immunity for his psychotherapy behavior.
Other courts considering the question have found no immunity for psychologists (Jensen
v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (finding no "firmly rooted tradition" of
immunity for functions performed by private psychiatrists employed by prison)). See

also Hoffman v. Harris, 511 U.S. 1060 (1994) (Thomas, J., dissenting from denial of
Br of Appellant's, APP 124

APP COA -291
8
Minn. Stat 148.88, Psychology Practice Act. Also see Minn. Admin. Rules 7200
7
12
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cert.) ("The courts that have accorded absolute immunity to social workers 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.").
Further, the history of psychologists in the divorce industry demonstrates such functions
are late twentieth century innovations. "Family Courts" are a creation of the 1970s after
the 1966 California Report on the Governor's Commission on the Family. L. Friedman,
Rights ofPassage: Divorce Law in Historical Perspective 63 OR. L. REV. 649, 667
(1984). The function of"psychologist-as-judge" custody evaluator was unknown to a
divorce courtroom until the mid-1990s "as the supply of psychologists continued to
increase and stricter third-party payer regimens were imposed for mental health treatment
(Gould, 2006). [C]ustody evaluation services generally are neither highly regulated nor
institutionalized, but rather may be characterized as a cottage industry (Schepard, 2005)."
Robert F. Kelly, Sarah H. Ramsey, Child Custody Evaluations: The Needfor SystemsLevel Outcome Assessments, 47 FAM. CT. REv. 286, 291 (2009).
Finally, it is unlikely that the district court could have identified any function of a family
court-including "listening sessions," ''therapy", "reconciliation," custody evaluations, or
13
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otherwise-existed at 1871 common law because in 1871 no civil judicial tribunal

possessedjurisdiction over marriage, 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). See
also Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of
Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234 (1975).
E.
Modern Family Court Jurisdiction Is Inferior; If It Has Immunity

It is Extremely Narrow
Knutson's Brief spaciously asserts that general jurisdiction includes jurisdiction over
"family law matters." 9Family court jurisdiction is incontrovertibly inferior because it is
specific. Minn. Stat. 518. Many courts recognize family courts as inferior tribunals.
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/or Children, Inc. v. City of
New York, 108 F. Supp. 2d 275, 286 (S.D.N.Y. 2000) (Family Court not a "court of
competent jurisdiction" for Rooker-Feldman 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, and could be liable for civil damages for acts in excess of their
Knutson's Brief page 21

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jurisdiction, and for acts done "maliciously or corruptly." Randall at 531. 10 While Judge
Knuston bears the burden of demonstrating modem family court functions enjoyed any
immunity at 1871 common law, in no case will he achieve an immunity scope greater
than an 1871 inferior court; for judicial acts within their jurisdiction not done
"maliciously or corruptly." Id.
Judge Knutson's Assertion ofBroad Immunity Lacks Authority
Judge Knutson asserts: "Acts and orders related to overseeing a family law case,
including orders requiring therapy and efforts to facilitate it, are acts inherently judicial in
nature." Knutson Brf. p. 35. His authority does not support this proposition.
Judge Knutson cites Myers v. Morris, 810 F.2d 1437, 1448 (8th Cir. 1987), abrogated by
Burns v. Reed, 500 U.S. 478 (1991). Myers was the first case in this Circuit to consider
the 1976 decision of Imbler v. Pachtman, 424 U.S. 409 (1976). Imbler was the seminal
Supreme Court case extending prosecutorial immunity under Section 1983 to acts of "the
prosecutor in his role as advocate for the State." Id. at 431 n. 33. The Court recognized
10
This distinction was recognized in Sparkman, 435 U.S. 349, 356 (1978), fn. 7. See also
Randall v. Brigham, 74 U.S. 523, 535-36 (1868) ("In reference to judges of limited and
inferior authority, it has been held that they are protected only when they act within their
jurisdiction."); Yates v. Lansing, 5 Johnson 282, 291 (N.Y. Sup. Ct. 1810) 1810 WL
1044, affd, 1811WL1445 (1811) ("[T]he judges of the king's superior courts of general
jurisdiction were not liable to answer personally for their errors in judgment. . . . [W]ith
respect to the inferior courts, it was only while they act within their jurisdiction."); Phelps
v. Sill, 1Day315, 327 (1804). See also 1871 comments of Representative Arthur, infra,
describing common law immunity: "Hitherto, in all the history of this country and of
England, no judge or court has been held liable, civilly or criminally, for judicial acts ....
Willfulness and corruption in error alone created a liability .... "
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that its general description was broad, and could potentially encompass administrative
acts as well as prosecutorial acts, yet declined to provide a more precise definition: "At
some point, and with respect to some decisions, the prosecutor no doubt functions as an
administrator rather than as an officer of the court. Drawing a proper line between these
functions may present difficult questions, but this case does not require us to anticipate
them." Id.
Myers picked up where Imbler left off, analyzing several acts by Scott County
Prosecuting Attorney R. Kathleen Morris which fell within Imbler 's broad range of
potentially-immune acts. Meyers at 1449. Myers extended a generous scope of

immunity to every function of Ms. Morris that plaintiffs accused, including "her role in
the initiation of criminal proceedings against them and her handling of evidentiary
material." Id. These several functions included investigation, advising police,
interviewing children, and advocacy for the state during the criminal proceeding. Id. at
1446-1452.
Meyers' limited immunity incorrectly, drawing a line between pre-charging and

post-charging phases. Today post-charging investigative, administrative, administrative,
and enforcement functions are not immune. See, e.g, Kalina v. Fletcher, 522 U.S. 118
(1997). Myers correctly limited prosecutorial immunity to criminal proceedings. Meyers
at 1452. Myers also recognized that absolute immunity would not extend to enforcement
16
Page: 25
or investigative functions in "approv[ing] or direct[ing] the removal of children from

their homes upon the arrest of one or both parents." Id. at n. 11. 11
In Burns v. Reed, 500 U.S. 4 78 (1991 ), the Supreme Court revisited Imbler and
analyzed Meyers to resolve circuit splits on the scope ofprosecutorial immunity. It found
the immunity extends to a prosecutor's "participation in a probable cause hearing, which
led to the issuance of a search warrant" but not to "the use of hypnosis 12 and the existence
of probable cause to arrest petitioner" Id. at 491-93. Contrary to Myers, the Court found
no absolute immunity for a prosecutor's investigative and administrative activity despite

that activity occurring after initiation of the criminal prosecution. Id.
Judge Knutson claim Myers immunizes "family law judges to work with experts to
determine the care provided to children in custody and applying judicial immunity to that
work." Knutson Brf. at 35. This is incorrect. Myers involved a criminal prosecution, not
"family law judges." Myers at 1452. Myers did not involve Minnesota laws regarding
''best interests," nor ajudge or psychologist determining "best interests"-but criminal
prosecution. Moreover, Myers expressly recognized that investigative functions such as

the "listening session" in which Dr. Gilbertson and Judge Knutson "the session was held
11
Specific to family issues, the Meyers plaintiffs accused ''us[ing] the interviews [of
children] to coerce perjured statements from young and vulnerable witnesses" in a
criminal investigation and "initiat[ing] neglect proceedings in the family court on behalf
of the Scott County Human Services Department [and] sign[ing] and approv[ing] the
neglect petitions." Id. at 1450. Because these functions are "functionally comparable to
prosecutor's initiation of the judicial process," this Court extended absolute immunity.
Id. at 1452.
12
A psychotherapeutic function.
17
Page: 26
for the sole purpose of facilitating therapy ... " are not prosecutorial.
13
Myers did not
extend immunity to psychotherapy.

Judge Knutson finally claims-citing no authority-that "sealing the transcript of the
session" was a judicial act. The record indicates the opposite-that Judge Knutson was
not undertaking the listening session pursuant to any order. Having no relationship to
any judicial act, the transcript-and its sealing-cannot be converted into one.
F. The District Court's "Judicial Capacity" Scope Relied on Elements Not

Relevant To Judicial Immunity
The district judge's sweeping analysis of the dozens of acts accused focused on a single
fact that Judge Knutsen interacted with Grazinni-Rucki inside of his courtroom. Order at
33. Judge Knutson repeats the error. Knutson Brf. p. 31.
The location of an accused act is not relevant to Sparkman's two-factor test, which
focusses onfunction regardless of location. For example, Sparkman favorably cited
Gregory v. Thompson, 500 F.2d 59 (9th Cir. 1974), which held that physically evicting a
litigant.from a courtroom is not an act "of a judicial nature." Sparkman at 370, fn. 10.
Justice White also cited a Sixth Circuit decision, Lynch v. Johnson, 420 F.2d 818 (6th
Cir. 1970), holding that a county judge who had a plaintiff "forcibly removed" from a
"fiscal court" and jailed was not immune. Id. See also Harper v. Merckle, 638 F.2d 848,
857 (5th Cir. 1981) (child support enforcement proceeding inside of courtroom and
13
Appellants' Brf, APP 125

18
Page: 27
Pierson v. Ray
Stump v. Sparkman
common law tort liability-it turns on a "strict liability" standard, requiring no proof of
intent. Id. See also n. 22, infra (comment of Representative David A. Clark).
2.
Pierson and Sparkman Erroneously Extended Common Law Immunity

to Civil Rights Liability
Pierson and Sparkman stand in error for exceeding the judicial power vested in United
States courts under Article III of the United States Constitution. In deciding Pierson and
Sparkman, the Supreme Court construed Section 1983 to find an immunity which is not
present on-and entirely inconsistent with-the face of the strict liability statute. Monell
v. Dep't of Soc. Servs. ofCity ofNew York, 436 U.S. 658, 665-94 (1978) Yet Section
1983 is not a subject for statutory interpretation; clearer language has likely never
emerged from Congress. Id.; see also Monroe at 185-191.
Instead of examining the unambiguous statute, Chief Justice Warren in Pierson
instructs us to examine congressional intent, which Chief Justice Warren claims does not
indicate an intent to abrogate the common law immunities of a judge. "The legislative
record gives no clear indication that Congress meant to abolish wholesale all commonlaw immunities . . . . The 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).
The "presumption" is as worthy as any speculation. It overlooks the most obvious
evidence of congressional intent-the unambiguous language ofthe statute itself.
20
Page: 29
Moreover, actual analysis of the congressional record, and history of judicial immunity
reveals Chief Justice Warren's presumption is simply wrong.
3.
Pierson Incorrectly Analyzed Legislative Privilege Rather Than

Judicial Immunity
In Pierson Chief Justice Warren ''presumed" that "the immunity of judges" was
"equally well established" as the legislative privilege. Remarkably, in presuming, he
failed to conduct analysis of the common law ofjudicial immunity-citing only to
Bradley's (post-Civil Rights Act) holding and Scott v. Stansfield, 3 Law Reports,
Exchequer, 220. 15 Pierson at 554. Despite having on hand the meticulous historical
analysis of nineteenth century common law and the 42nd Congress' legislative intent
provided by Justice Douglas in 1961 's Monroe v. Pape decision, Chief Justice Warren's
1967 opinion ignored it.
Dissenting, Justice Douglas-the author of Monroe--did draw from his prior
historical analysis of common law and the congressional record to the Civil Rights Act,
reaching a forceful conclusion: "The Court's ruling is not justified by the admitted need
for a vigorous and independent judiciary, is not commanded by the common-law doctrine
of judicial immunity, and does not follow inexorably from our prior decisions." Pierson
v. Ray, 386 U.S. 547, 559 (1967) (Douglas, J., dissenting). Similar rich analyses and
enlivened opinions are evident in Monell v. Dep't of Soc. Servs. of City ofNew York, 436
15
Analyzed in Bradley at n. 16. "[A] judge of a county court was sued for slander, and
he put in a plea that the words complained of were spoken by him in his capacity as such
judge, while sitting in his court, and trying a cause in which the plaintiff was defendant."
21
Page: 30
U.S. 658, 665-94 (1978); Pulliam at 529-544; Sparkman at 368 (Stewart, J., Powell, J.,
dissenting), Dykes v. Hoseman, 776 F.2d 942, 954 (I Ith Cir. 1985) (Hatchett, J,
dissenting) ("[T]he en bane court holds that judicial immunity is complete, unqualified,
and without exception ... As the majority concedes, no precedent, Supreme Court or
otherwise, requires such a broad definition and application of the judicial immunity
doctrine. [N]o policy considerations justify such a result. . . . Judges ... will be able to
deal willy nilly with the rights of citizens without having to account for willful
unconstitutional actions.").
Instead of analyzingjudicial immunity, Justice Warren adopted analysis of
legislative privilege from Tenney v. Brandhove, 341 U.S. 367 (1951). In Tenney Justice
Frankfurter considered whether a California legislative committee conducting a contempt
proceeding against a man circulating a flyer protesting the committee was immune from
an action under Section 1983. Id. at 377. The question was whether a common law
"speech or debate" privilege protecting lawmaking activity could be extended to a
lawmaker's behavior in conducting the contempt hearing. Id.
Justice Frankfurter traced the history of English common law preserving legislative
speech or debate privilege as derivative of liberty-an extension of the voters' freedom
of speech and conscience. Id. at 372-73. Protection of "speech or debate" was necessary
to prohibit the English King and his aristocracy from persecuting members of Parliament
making laws unfavorable to the then-ruling class. Justice Frankfurter aligned the English
22
Page: 31
speech liberty with the federal "speech or debate" analog in the United States
Constitution at Article I, Sec. 6, cl. 1. 16 Like Chief Justice Warren, Justice Frankfurter
presumed-analyzing no legislative history-that the 42nd Congress would not have

intended to limit any state's legislative activity in enacting the 1871 Civil Rights Act
because Congress was itself a "staunch advocate of legislative freedom." Id. at 376
(emphasis added).
Tenney justified extending the speech or debate liberty to the committee hearing
function because legislators are directly-elected and immediately accountable to voters.
Id. at 378. Tenney also held the narrow immunity was lost if"there was a usurpation of
functions exclusively vested in the Judiciary or the Executive." Id.
4. Judicial Immunity is the Opposite ofLegislative Privilege-Judges Are

Sovereigns Possessing Not "Rights" but Delegated Authority
Judicial authority and legislative freedom are night and day. Judges exercise jurisdiction
as sovereigns-not liberties from sovereigns. While judges have all the rights of any
16
That privilege is narrow: "The Senators and Representatives . . . shall in all Cases,
except Treason, Felony and Breach of the Peace, be privileged from Arrest during their
Attendance at the Session of their respective Houses, and in going to and returning from
the same; and for any Speech or Debate in either House, they shall not be questioned in
any other Place." The privilege is against arrest-not civil liability-does not extend to
felonies or treason, or "breach of the peace"- a misdemeanor. Arrest outside of
"Session" is permitted, and members maybe "questioned" for activity other than "speech
or debate." Tenney at 377 (citing Kilbourn v. Thompson, 103 U.S. 168 (1880) (false
imprisonment not privileged); Marshall v. Gordon, 243 U.S. 521 (1917). Even so limited
Jefferson was fearful of the power it gave legislators. Tenney at 375. Hamilton was not
so fearful of "the least dangerous branch"-because it exercised no similar liberty. The
Federalist No. 78 (A. Hamilton) (1788).
23
Page: 32
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). "[T]he censorial power is in the
people over the Government, and not in the Government over the people." New York
Times Co. v. Sullivan, 376 U.S. 254, 282-83 (1964). There is no need for a judge to
express opinions, experiences, or desires of her own or those she represents to create
law-he/she is given law.
17
0ther than necessary for faithful adjudication, a judge's
"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 United States and State of
Minnesota constitutions do not extend a speech or debate privilege to the judiciary
because courts are not empowered to speak or debate. The function of a judge is to
adjudicate-apply the given law to properly-admitted facts. There is no need to protect a
judge's "speech" other than to preserve the judge's ability to pronounce adjudicationmerely a "substantial state interest"18 that must yield to Minnesota's "fundamental
law"---citizen rights such as remedy, 19 due process, equal protection, speech, and
17
See Separation of powers Minn. Const. Art 3, sec 1.

Gentile v. State Bar ofNevada, 501 U.S. 1030, 1074 (1991).
19
Minnesota Constitution, Article 1. sec. 8 provides:
Redress of injuries or wrongs.
Every person is entitled to a certain remedy in the laws for all injuries or wrongs which
he may receive to his person, property or character, and to obtain justice freely and
18
24
Page: 33
association. See Theide v. Town of Scandia Valley, 217 Minn. 218, 226-27, 14 NW 2d
400, 406 (1944) (forcibly removing woman and children from their home in sub-zero
weather by the town sheriff and forced to return to their "legal settlement" in another
town for the purpose of obtaining poor relief violated "fundamental law"20 despite
consistency with state law.). Minnesota courts may not construe statutes contrary to
citizen rights under the "fundamental law." See T. Flemming, J. Norby, The Minnesota
Bill ofRights: Wrapt in the Old Miasmal Mist, 7 HAMLINEL.REv. 194 (1984).
The long history of preservation of legislative speech and debate-a fundamental
liberty-is entirely absent from the history of judicial immunity. See Monell at 665-94;
Pierson (Douglas, J. dissenting); Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) ("Indeed,
as the Court also indicated in Monroe v. Pape, supra, the legislative history indicates that
there is no absolute immunity"); Pulliam at 540 (1984) ("every Member of Congress who
spoke to the issue assumed that judges would be liable under 1983"). 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 that has never existed.
without purchase, completely and without denial, promptly and without delay,
conformable to the laws. Judges are not representatives of voters, but independent of
electoral will, passion, and accountability.
20
"The entire social and political structure of America rests upon the cornerstone that all
men have certain rights which are inherent and inalienable. Among these are the right to
be protected in life, liberty, and the pursuit of happiness; the right to acquire, possess and
enjoy property; and the right to establish a home and family relations-all under equal
and impartial laws which govern the whole community and each member thereof... The
rights, privileges, and immunities of citizens exist notwithstanding there is no specific
enumeration thereof in State Constitutions." Theide at 226-27, 14 NW 2d at 406.
25
Page: 34
Far from tradition, the "hoary doctrine of judicial immunity"21 is expropriation. Tenney's
"presumption" was a modest stretch of liberty over the border with sovereignty to protect
the functions of elected representatives of the people. Pierson 's adoption of Tenney's
stretch to protect sovereigns of the people was a full-force embezzlement of liberty.
Deployed today to exonerate sovereign county judges in their oppression of those in
whom liberty is vested by the fundamental law, Pierson 's manufacture ofjudicial
immunity is-in perspective-nothing short of a third American revolution.
5. Congress Expressly Intended to Abrogate Judicial Immunity

Nor can Chief Justice Warren's "presumption" withstand the incontrovertible recordThe 1871 Congress repeatedly expressed intent that the Civil Rights Act would abrogate
judicial immunity. Congress adopted the language of Section 1983 from its criminal
analog-the 1866 Civil Rights Act, today codified at 18 U.S.C. 242. Monroe v. Pape,
365 U.S. 167 (1961).
22
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 ... " 23 The Acts thus "must be construed as in pari
materia"-any 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).
21
See Note, Liability of Judicial Officers Under Section 1983, 79 YALE L.J. 322, 337
(1969) ("Yale Note").
22
See also Yale Note at 327-328.
23
Cong. Globe, 42nd Cong., 1st Sess. 60 (App.) (1871); Yale Note at 327.
26
Page: 35
On that record it is incontrovertible that the 42nd Congress affirmatively rejected common
law judicial immunity.
I answer it is better to invade the judicial power of the States than permit it to
invade, strike down, and destroy the civil rights of citizens. A judicial power
perverted to such uses should be speedily invaded.
Cong. Globe, 39th Cong., 1st Sess. 1837 (1866) (remarks of Representative Lawrence).
The 1866 Act was vetoed by President Johnson because it abrogated common law
judicial immunity.24 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. "25
Section 1 of the 1871 Act (now Section 1983) passed rapidly through Congress because
debate wasn't necessary-Congress recognized Section 1 as merely "adding" a civil
remedy to the 1866 Act. Debate instead focused on section 2 of the bill (modernly
Section 1985) because of concerns over federalism and regulation of private behavior.
Griffin v. Breckenridge, 403 U.S. 88, 99 (1971).
The recorded debate demonstrates unequivocally that Congress intended to abrogate

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 exercised against Republicans
without regard to law or justice, make up a catalogue of wrongs, outrageous
24
Yale Note at 327.

Cong. Globe, 39th Cong., 1st Sess. 1758 (1866) (remarks of Senator Trumbull); Yale
Note at 328.
25
27
Page: 36
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.
Id. (remarks of Senator Thurman).
"[T]he judge of a State court, though acting under oath of office, is made liable to a
suit in the Federal Court and subject to damages for his decision against a suitor,
however honest and conscientious that decision may be ..."
Id. (remarks of Representative Lewis). Representative Arthur recognized the law would
be a drastic reversal of common law immunity:
Hitherto, in all the history of this country and of England, no judge or court has
been held liable, civilly or criminally, for judicial acts .... Willfulness and
corruption in error alone created a liability . . . . Under the provisions of this
section every judge in the State court. . . will enter upon and pursue the call of
official duty with the sword of Damocles suspended over him ... "
Cong. Globe, 42nd Cong., 1st Sess. (1871) 365-366. 26
Courts considering parallel questions have deferred to this vivid record. See, e.g.,
Picking v. Pennsylvania R.R., 151F.2d240 (3rd Cir. 1945) ("But the privilege as we have
26
See also Yale Note at 328 and references to additional consistent comments inn. 38.
"On three occasions during the debates, legislators explicitly stated that judges would be
liable under the [1871] Act. No one denied the statements." "In sum, the question of
congressional intent seems relatively clear: 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.
Yale Note's 1969 author left open the door that "the legislative history does not preclude
entirely the Court's construction of the statute if the policy reasons for judicial immunity
are sufficiently persuasive." That "policy reasons" door was closed eleven years later in
Malley.
28
Page: 37
stated was a rule of the common law. Congress possessed the power to wipe it out. We
think that the conclusion is irresistible that Congress by enacting the Civil Rights Act sub
judice intended to abrogate the privilege to the extent indicated by that act and in fact did
so . . . . The statute must be deemed to include members of the state judiciary acting in
official capacity."); Monell v. Dep't of Soc. Servs. of City ofNew York, 436 U.S. 658, 665
(1978); Owen v. City ofIndependence, Mo., 445 U.S. 622, 643 (1980) (''Nowhere in the
debates, however, is there a suggestion that the common law excused a city from liability
on account of the good faith of its authorized agents, much less an indication of a
congressional intent to incorporate such an immunity into the Civil Rights Act"); Pulliam
v. Allen, 466 U.S. 522, 543 (1984).

Far from an intent to incorporate common law judicial immunity, Congress in
passing both Acts specifically intended to eliminate it as the source of the monumental
evil of state-sponsored oppression jeopardizing our nation's existence by precipitating
civil warfare.27
27
Congress' intent to hold judges accountable is recorded as recently as 1979 by the 96th
Congress:
[Section 1983] is an essential element of an extraordinary series of congressional
enactments that transformed the relationship between the Federal Government and
its constituent parts. [T]he very purpose of the 1983 was to interpose the Federal
courts between the States and the people, as guardians of the people's Federal
rights-to protect the people from unconstitutional action under color of State law,
whether that action be executive, legislative, or judicial.
Statement of Representative David A. Clarke, Chairperson, Committee on Judiciary,
Government of the District of Columbia on the Act of Dec. 29, 1979, 93 Stat. 1284, PL
170 LH, 1st Sess. (Dec. 29, 1979) (emphasis added).
29
Page: 38
CONCLUSION
Ifaura there be, it is hardly protected by exonerating[rom

liability such lawless conduct as took place here2
Nineteenth and twentieth century American judges have overstepped constitutional

restriction to usurp powers reserved to the legislature and written for themselves an
immunity far greater even than that of an English judge, or even a King, at common
law. 29
The purposes of immunity-to protect efficient process-is today accomplished at
the pleading stage. Unlike the 1871 era of federal procedure in which a judge could be
forced to stand trial on mere "ascription" of culpable intent to an accused act,30 modernly,
like all litigants, a judge is protected by procedural barriers provided in Harlow v.
Fitzgerald, 457 U.S. 800 (1982) and Pearson v. Callahan, 555 U.S. 223 (2009) which
protect against a mere "ascription" of malice. These are bolstered by the plausibility test
provided in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Federal Rule of
Civil Procedure 56 thereafter.
28
Sparkman at 368 (Stewart, J. dissenting).

"[T]o no one will we sell, to no one deny or delay right or justice." Magna Carta
(1215); "[W]here there is a legal right, there is also a legal remedy by suit or action at
law, whenever that right is invaded." Marbury v. Madison, 5 U.S. 137, 163 (1803)
(quoting William M. Blackstone, 3 Commentaries *23).
30
"Few persons sufficiently irritated to institute an action against a judge for his judicial
acts would hesitate to ascribe any character to the acts which would be essential to the
maintenance of the action." Bradley at 348.
29
30
Page: 39
The expansion of a judge-made exception to the civil rights act , chief redress of
civil rights violations, has rendered state judges immune from suit even for the most
bizarre, corrupt or abusive judicial acts.
A Judge's invocation of the doctrine of judicial immunity has effectively denied
citizens any redress for injuries, embarrassment, and unjust imprisonment caused by
errant judges. Ifjudicial immunity truly is to serve as a bulwark of justice, more clearly
defined limits must be placed on it, arising from the due process clause itself
Clothing a Judge with immunity simply because he performed a ''judicial act" overlooks
the real-world probability that even judicial acts can be utterly inconsistent with due
process. Important personal rights, such as the right to have a family here, can be
destroyed by the mere nod of a judge's head. Judges should not be privileged to violate
the rights of citizens unfortunate enough to find themselves in a biased, corrupt or
irresponsible court. Accordingly, the district court erred in dismissing Appellants' case.
MACDONALD LAW FIRM, LLC
Dated: _ _M_ar~ch_4_ _ _ _ , 2015
Isl Michelle L. MacDonald

Michelle L. MacDonald, # 1823 70
1069 South Robert Street
Telephone: (651) 222-4400
Facsimile: (651) 222-1122
COUNSEL FOR APPELLANTS
31
Page: 40
CERTIFICATE OF COMPLIANCE AND VIRUS SCANNING
1.
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)
because this brief contains 6946 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionality spaced typeface in Microsoft
Word 2010 in Times New Roman 14 pt. type.
3.
Pursuant to Circuit Rule 28A(h), I also hereby certify that electronic files of
this Brief and accompanying Addendum have been submitted to the Clerk via the
Court's CMJECF system. The files have been scanned for viruses and are virus-free.
Respectfully submitted,
Dated: _ _M_ar~ch_4_ _ _ _ , 2015

Telephone: (651) 222-4400
Facsimile: (651) 222-1122
32
Page: 41
CERTIFICATE OF SERVICE
I hereby certify that on February 26, 2015, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Eighth Circuit by
using the CM/ECF system. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the CM/ECF system.
M~ar~c~h_4_ _ _ _, 2015
Dated: _ _

Telephone: (651) 222-4400
Facsimile: (651) 222-1122
33
Page: 42

Grazzini-Rucki Reply Brief

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No.

Sandra Grazzini-Rucki individually, et al.,

RESPONSE AND REPLY BRIEF OF APPELLANTS

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

CORPORATE DISCLOSURE STATEMENT

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

3. 3. The District Court Extended Immunity Based On Factors Not

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

1. Section 1983 Does Not Require Proof of Malicious or Corrupt

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

Ashe/man v. Pope, 793 F.2d 1072 (9th Cir. 1986) .................................................. 19

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .......................................................... 4

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

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Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................. 30

Tenney v. Brandhove, 341 U.S. 367 (1951) .................................................. 22,23,25

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

Theide v. Town of Scandia Valley, 217 Minn. 218, 226-27, 14 NW 2d 400,

Tower v. Glover, 467, U.S. 914, 920 (1984) ............................................................. 4

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OR. L. REV. 649, 667 (1984) ................................................................................ 13

Indeterminacy, 39 LAW AND CONTEMP. PROB. 226, 234 (1975) .......................... 14

Mist, 7 HAMLINE L.REv. 194 (1984) .................................................................... 25

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to determine that the function accused-testimony of a grand jury witness-enjoyed

An officer's failure to prove up a common law analog is dispositive of the issue

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

The District Court Extended Immunity Based On Factors Not Relevant to

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

Judge Knutson's Administrative Behavior in Assigning Himself to

Appellate Case: 14-2569

Date Filed: 03/04/2015 Entry ID: 4250770

Appellate Case: 14-2569

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Sparkman's two-element immunity test) broadly. Zahl at *9. Sparkman's instruction

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Judge Knutson's "Listening" Psychotherapy Session with the

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immunity for functions performed by private psychiatrists employed by prison)). See

Br of Appellant's, APP 124

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otherwise-existed at 1871 common law because in 1871 no civil judicial tribunal

Modern Family Court Jurisdiction Is Inferior; If It Has Immunity

competent jurisdiction" for Rooker-Feldman analysis).

Knutson's Brief page 21

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Date Filed: 03/04/2015 Entry ID: 4250770

Appellate Case: 14-2569