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D. Denardo v. Michalski, June, & Does (5/24/91), 811 P 2d 315
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Court,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL DENARDO, )
) Supreme Court No. S-3871
) Trial Court No.
v. ) 3AN-88-6176 Civil
PETER MICHALSKI, MARC ) O P I N I O N
JUNE, JOHN DOES, )
Appellees. ) [No. 3691 - May 24, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Milton M. Souter,
Appearances: Daniel DeNardo, pro se,
Anchorage. William G. Mellow, Assistant
Attorney General, Juneau, Douglas B. Baily,
Attorney General, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
The court is asked to determine whether the superior
court correctly concluded that Judge Michalski was protected from
liability for damages based on the doctrine of judicial immunity
and whether summary judgment was properly entered in favor of the
state's attorney regarding Daniel DeNardo's claim of abuse of
process. In a prior proceeding, judgment was entered against
Daniel DeNardo, and he was ordered to pay attorney's fees to the
state. When DeNardo failed to pay, he was summoned to court by
attorney Marc June on behalf of the state for a judgment debtor's
examination.1 Judge Peter Michalski presided over the hearing.
DeNardo moved to have Michalski recused based on AS
22.020.020(a)(5) because Michalski had been chief of the state's
Office of Special Prosecutions and Appeals and, according to
DeNardo, had litigated appeals against DeNardo within two years
prior to the judgment debtor hearing.2 His motion was denied.
In response to questioning concerning his financial
status at the hearing on the merits, DeNardo asserted his Fifth
Amendment privilege and claims to have pled inability to perform.
When he was warned that continued refusal to answer would subject
him to civil contempt, DeNardo requested a jury trial, which he
did not receive. After being found in civil contempt on June 10,
1986, he was incarcerated. On September 15, 1986, DeNardo was
given another opportunity to respond to questions regarding his
finances. He again requested a jury trial and refused to answer,
and was returned to the Sixth Avenue Annex. Judge Michalski
ordered his release on December 10, 1986.
DeNardo filed this lawsuit seeking $5,000,000 in
damages from Michalski and June alleging violations of his
constitutional rights. In response to Michalski's and June's
motion, Judge Souter dismissed the claims against Michalski, but
ruled that DeNardo had alleged a cause of action for abuse of
process against June. The state moved for summary judgment as to
the claims against June, which was granted. DeNardo appeals.
The United States Supreme Court has held that judges
are not liable for damages for their "judicial acts, even when
such acts are in excess of their jurisdiction, and are alleged to
have been done maliciously or corruptly." Bradley v. Fisher, 80
U.S. (13 Wall) 335, 351 (1871). In Stump v. Sparkman, 435 U.S.
349, 356-57 (1978), the Court ruled that a judge who ex parte
ordered the sterilization of a minor was nonetheless immune
because, even though he acted in excess of his jurisdiction, he
did not act in the "clear absence of all jurisdiction."
Judge Michalski is only liable if his actions were 1)
not "judicial,"or 2) outside of his subject matter jurisdiction.
Michalski's actions were clearly judicial. Cf. Stump v.
Sparkman, 435 U.S. at 362; McAlester v. Brown, 469 F.2d 1280,
1282 (5th Cir. 1972). DeNardo, however, claims that AS 22.20.020
stripped Michalski of jurisdiction, and consequently of immunity.
The application of AS 22.20.020 to an assistant
district attorney who was subsequently appointed to the bench was
evaluated in Keel v. State, 552 P.2d 155 (Alaska 1976). We held
that the judge would only be disqualified from cases in which "he
actually participated . . . by counseling or otherwise." Id. at
157 n.5. DeNardo does not indicate how Michalski was directly
involved in any of his civil cases from his position as head of a
criminal division. AS 22.20.020(a)(5), as construed by Keel,
only requires the judge to recuse her or himself if she or he
participated in some aspect of the case at bar.
Furthermore, even if AS 22.20.020 required Michalski to
recuse himself, it did not strip his court of all subject matter
jurisdiction. Michalski's judicial immunity therefore remained
intact. The Court in Stump and Bradley only focused on the
court's jurisdiction, and, other than determining that the
individual judge's actions were "judicial,"did not focus on the
propriety of specific actions of the judge. See Bradley, 80 U.S.
(13 Wall) at 351-52. Since Michalski had jurisdiction to decide
whether to recuse himself, his exercise of that jurisdiction in
deciding not to do so, even if improper, did not divest him of
DeNardo also claims that Michalski lost his immunity by
proceeding in disregard of DeNardo's constitutional right to a
jury trial. This argument has the same flaws as the argument
immediately above. Even if denying DeNardo a jury trial violated
his constitutional rights, it did not strip Michalski of subject
matter jurisdiction and so his immunity is unaffected. See Stump
v. Sparkman, 435 U.S. at 359 ("A judge is absolutely immune from
liability for his judicial acts even if his exercise of authority
is flawed by the commission of grave procedural errors.").
We now turn to DeNardo's claim that June violated his
constitutional rights by engaging in conduct which resulted in
DeNardo's civil contempt imprisonment. We have found that abuse
of process consists of two essential elements, "first, an
ulterior purpose, and second, a willful act in the use of the
process not proper in the regular conduct of the proceeding."
Kollodge v. State, 757 P.2d 1024, 1026 (Alaska 1988) (quoting
Jenkins v. Daniels, 751 P.2d 19, 22 (Alaska 1988)). The second
element "contemplates some overt act done in addition to the
initiating of the suit. . . . `[T]he mere filing or maintenance
of a lawsuit--even for an improper purpose--is not a proper basis
for an abuse of process action.'" 757 P.2d at 1026 (quoting Oren
Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.,
728 P.2d 1202, 1209 (Cal. 1986)); see also Keen v. Ruddy, 784
P.2d 653, 655 (Alaska 1989) (No recovery for abuse of process
because the attorney "had no ulterior purpose. More important
[the attorney] used the process for exactly the purpose it was
designed to accomplish; namely the collection of a debt . . .
."); W. Keeton, D. Dobbs, R. Keeton & D. Owen, The Law of Torts
121, at 898 (5th ed. 1984).
The claim asserted against June is similar to that
raised in Keen. June contends that he initiated the judgment
debtor examination to collect an unpaid judgment and he did not
intend to entice DeNardo into committing civil contempt. Not
only is the requisite "ulterior motive"missing, but DeNardo has
not shown that any acts undertaken by June were not steps
required to take the process to its authorized conclusion.
To survive a motion for summary judgment an opponent
must "set forth specific facts showing that there is a genuine
issue for trial." Civil Rule 56(e). Since DeNardo did not do
so, summary judgment was properly entered against him.
The judgment below is AFFIRMED.
1 June is a private attorney but he was retained to defend
the state and state officers in actions brought by DeNardo.
2 At the time DeNardo attempted to disqualify Judge
Michalski, AS 22.20.020(a)(5) stated: "A judicial officer may not
act as such in a court of which he is a member in an action in
which . . . either party has retained him as their attorney or
has been professionally counseled by him in any matter within two
years preceding the filing of the action." See Keel v. State,
552 P.2d 155, 156 (Alaska 1976).
3 In regard to the history of judicial immunity, the Supreme
Court of the United States has observed the following:
Earlier, in Floyd and Barker, 12 Co.
Rep. 23, 77 Eng. Rep. 1305 (1607), Coke and
his colleagues of the Star Chamber had
declared the judges of the King's Bench
immune from prosecution in competing courts
for their judicial acts. In doing so, they
announced the theory upon which the concept
of judicial immunity was built. The judge
involved in Floyd and Barker was a common-law
Judge of Assize who had presided over a
murder trial. He was then charged in the
Star Chamber with conspiracy. The court
concluded that the judges of the common law
should not be called to account "before any
other Judge at the suit of the King." Id.,
at 24, 77 Eng. Rep. at 1307.
[A]nd it was agreed
that insomuch as the Judges of the
realm have the administration of
justice, under the King, to all his
subjects, they ought not to be
drawn into question for any
supposed corruption, which extends
to the annihilating of a record, or
of any judicial proceedings before
them, or tending to the slander of
the justice of the King, which will
trench to the scandal of the King
himself, except it be before the
King himself; for they are only to
make an account to God and the
King, and not to answer to any
suggestion in the Star-Chamber.
Id., at 25, 77 Eng. Rep. at 1307.
. . . .
By 1868, one of the judges of the
Court of Exchequer explained judicial
immunity in language close to our
contemporary understanding of the doctrine:
It is essential in all
courts that the judges who are
appointed to administer the law
should be permitted to administer
it under the protection of the law,
independently and freely, without
favor and without fear. This
provision of the law is not for the
protection or benefit of a
malicious or corrupt judge, but for
the benefit of the public, whose
interest it is that the judges
should be at liberty to exercise
their functions with independence,
and without fear of consequences.
Scott v. Stansfield, 3 L. R. Ex.,
at 223, quoted in Bradley v.
Fisher, 13 Wall. 335, 350, n.
Pulliam v. Allen, 466 U.S. 522, 530-32 (1984).