Supreme Court v. Consumers Union

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In Supreme Court v. Consumers Union, Inc., 446 U.S. 719 (1980), the unanimous U.S. Supreme Court held that declaratory and injunctive relief were available against judges despite the doctrine of absolute judicial immunity from lawsuit.

Justice Byron White, who wrote most of the Court's judicial immunity decisions, noted that:

"We have never held that judicial immunity absolutely insulates judges from declaratory or injunctive relief with respect to their judicial acts."

Factual Background

This case arose when, in 1974, Consumers Union of the United States, Inc. (Consumers Union), sought to prepare a legal services directory designed to assist consumers in making informed decisions concerning utilization of legal services. Consumers Union sought to canvass all attorneys practicing law in Arlington County, Va., asking for information concerning each attorney's education, legal activities, areas of specialization, office location, fee and billing practices, business and professional affiliations, and client relations. However, it encountered difficulty because lawyers declined to supply the requested information for fear of violating the Bar Code's strict prohibition against attorney advertising. Rule 2-102 (A)(6) of the Code prohibited lawyers from being included in legal directories listing the kind of legal information that Consumers Union sought to publish.

On February 27, 1975, Consumers Union and the Virginia Citizens Consumer Council brought an action pursuant to Section 1983 against the Virginia Court, the Virginia State Bar, the American Bar Association, and, in both their individual and official capacities, the chief justice of the Virginia Court, the president of the State Bar, and the chairman of the State Bar's Legal Ethics Committee. With respect to the Virginia Court, the complaint identified its chief justice and alleged only that the court had promulgated the Bar Code. The other defendants were alleged to have authority to enforce the Code. Plaintiffs sought a declaration that defendants had violated their First and Fourteenth Amendment rights to gather, publish, and receive factual information concerning attorneys practicing in Arlington County, and a permanent injunction against the enforcement and operation of DR 2-102(A)(6).

A three-judge District Court was convened pursuant to 28 U. S. C. § 2281 (1970 ed.) and ultimately ruled in favor of the plaintiffs. Eventually the plaintiffs collected attorneys' fees for their efforts, and Justice White upheld those fees on behalf of the U.S. Supreme Court.

Partially Superseded by Statute

In October 1996, Congress amended Section 1983 to bar injunctive relief "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983; Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 3853; see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999); Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998). When a plaintiff does not allege, and the record does not suggest, that a declaratory decree was violated or that declaratory relief was unavailable, claims for injunctive relief against a judge must be dismissed.