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Judicial immunity is not absolute, a California appeal court ruled Wednesday in a bitterly contested case in which a lawyer acting as a referee was accused of assaulting a litigant. “A judge’s robe is not a king’s crown,” Justice M. Kathleen Butz, of Sacramento’s 3rd District Court of Appeal, wrote. “[Judicial immunity] was never intended to protect acts of thuggery against litigants merely because the assailant happens to be a judge.” Justices Arthur Scotland and Rodney Davis concurred, reversing the lower court. The appeal was based on a demurrer sustained by Placer County Superior Court Judge Joseph O’Flaherty, which required the appellate justices to accept the underlying allegations as true. In reality, however, the dispute is far from settled, with each party offering extremely divergent views about what led to a civil suit seeking damages from Roseville, Calif., attorney David Price. According to Wednesday’s ruling, Price, a solo practitioner who handles litigation and transactions, was appointed by the trial court as a discovery referee in a dispute between Jerome Regan and Jennifer Martin. Contending that Price was biased in favor of their opponents, Regan and his attorney, Granite Bay, Calif., solo Robert Kingslan, presented him with a protective order they planned to file with the court in June 2004 asking that he be removed from the case. They claim an angry Price tried to keep them from leaving a deposition at his office, eventually slamming a door on Regan, injuring his shoulder and neck in an area where he had undergone cancer surgery. Regan sued for assault, battery, false imprisonment, negligence and infliction of emotional distress, but the trial court judge sustained Price’s demurrer to the complaint based on judicial immunity. Price and his lawyers — both deputy attorneys general representing the Administrative Office of the Courts — said Wednesday that Price never attacked Regan. “It simply never happened,” Price said. “We were all sitting in a room [at his office] waiting for a deposition, when they walked in, handed me these documents and walked out. It’s just fabricated.” Sacramento-based Deputy AG Jill Scally backs Price. “Anybody can say anything in a pleading,” she said. “And that’s why we disagree with this court’s ruling.” The appellate court’s opinion reverses the demurrer granted Price and sends the case back to the trial court for resolution. The 3rd District, ruling on the legal issue, held that judicial officers are insulated from civil liability when exercising judicial functions. Applying “brute force” in dealing with litigants, the justices ruled, isn’t covered unless there are extraordinary circumstances, such as when a judge physically intervenes to protect court staff from an assault. “We cannot accept Price’s claim that a judge may, with absolute immunity, physically assault a litigant on the ground that he was exercising his powers to compel the parties to proceed with a scheduled deposition,” Justice Butz wrote. “Under the same rule, a judge could, without incurring civil liability, step down from the bench and choke an unruly litigant under the ‘judicial’ auspices of restoring order to the courtroom.” Deputy AG Scally and Supervising Deputy AG Darryl Doke said they will have to confer with officials at the AOC about whether to appeal. “There’s a real strong public policy reason for judicial officers to have immunity,” Doke said. “Otherwise, nobody in his right mind would become a judicial officer. If the immunity can be defeated, basically, by people raising scurrilous accusations, really you don’t have much immunity.” Scally added that “nobody’s suggesting that the type of contact alleged is proper, but it must be entitled to immunity because it’s only alleged. Anybody can make up anything to harass a judge.” Both Scally and Doke said there are witnesses ready to refute Regan’s allegations. Kingslan said he’s not surprised that Price, Scally and Doke are accusing his client of lying. “[Price] doesn’t want to admit he did it,” Kingslan said, “but he did.” He also said he wasn’t surprised by the court’s ruling. “I couldn’t believe,” he said, “that a judicial officer or judge could assault someone and have immunity.”

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