OCTOBER TERM, 1992
Syllabus
ANTOINE
v. BYERS & ANDERSON, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-7604. Argued March 30, 1993-Decided June 7,1993
Petitioner's appeal from a federal-court bank robbery conviction
was delayed four years because respondent court reporter failed to
provide a trial transcript. In his civil damages action against
respondent and her former employer, also a respondent here, the
Federal District Court granted summary judgment in respondents'
favor on the ground that court reporters are entitled to absolute
immunity. The Court of Appeals affirmed.
Held: A court reporter is not absolutely immune from
damages liability for failing to produce a transcript of a federal
criminal trial. Respondents bear the burden of establishing the
justification for the absolute immunity they claim, which depends
on the immunity historically accorded officials like them at common
law and the interests behind it,
Butz v.
Economou,
438 U. S. 478,
508. Since court reporters were not among the class of persons
protected by judicial immunity in the 19th century, respondents
suggest that common-law judges, who made handwritten notes during
trials, be treated as their historical counterparts. However, the
functions of the two types of notetakers are significantly
different, since court reporters are charged by statute with
producing a "verbatim" transcript for inclusion in the official
record, while common-law judges exercise discretion and judgment in
deciding exactly what and how much they will write. Moreover, were
a commonlaw judge to perform a reporter's function, he or she might
well be acting in an administrative capacity, for which there is no
absolute immunity.
Forrester v.
White, 484 U. S. 219, 229.
Because their job requires no discretionary judgment, court
reporters are not entitled to immunity as part of the judicial
function. See
Imbler v.
Pachtman, 424 U. S. 409, 423,
n. 20. pp. 432-438.
950 F.2d
1471, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
M. Margaret McKeown argued the cause for petitioner.
With her on the briefs was
Alice D. Leiner.
William P. Fite argued the cause for respondents. With
him on the brief for respondent Ruggenberg was
Mark
430
M. Miller. Tyna Ek filed a brief for respondent Byers
& Anderson, Inc. *
JUSTICE STEVENS delivered the opinion of the Court. This case
presents the question whether a court reporter is absolutely immune
from damages liability for failing to produce a transcript of a
federal criminal trial.
I
In March 1986, after a 2-day trial, a jury convicted petitioner
of bank robbery. Petitioner promptly appealed and ordered a copy of
the transcript from respondent Ruggenberg, who had served as the
court reporter. The court ordered Ruggenberg to produce a
transcript by May 29, 1986.
Over two years later, Ruggenberg had yet to provide a
transcript, despite a long series of hearings, court orders, and
new filing deadlines. In July 1988, Ruggenberg finally explained
that she had lost many of her trial notes, though additional notes
and tapes were later to come to light. At one point in the
proceedings, Ruggenberg was fined and arrested as the Court of
Appeals sought to obtain this and other overdue transcripts.
Eventually, making use of Ruggenberg's partial notes and materials
submitted by the parties pursuant to Rule 10(c) of the Federal
Rules of Appellate Procedure,l another reporter produced a partial
transcript
* Denise Meyer, Michael J. Brennan, Dennis E. Curtis, Judith
Resnik, and Charles D. Weisselberg filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae
urging reversal.
Jeffrey P. Altman filed a brief for the National Court
Reporters Association as
amicus curiae urging
affirmance.
1 Federal Rule of Appellate Procedure W(c) provides in relevant
part:
"Statement on the evidence or proceedings when no report was
made or when the transcript is unavailable.-If no report of the
evidence or proceedings at a hearing or trial was made, or if a
transcript is unavailable, the appellant may prepare a statement of
the evidence or proceedings from the best available means,
including the appellant's recollection."
431
and the appellate process went forward. As a result of the delay
in obtaining a transcript, petitioner's appeal was not heard until
four years after his conviction.
950 F.2d
1471, 1472-1473 (CA9 1991); No. C88-260TB (WD Wash., Feb. 16,
1990), pp. 2-3, reprinted in App. 24.
In 1990, the Court of Appeals set aside petitioner's conviction
and remanded the case to the District Court to determine whether
petitioner's appeal had been prejudiced by the lack of a verbatim
transcript, and whether the delay in receiving the transcript
violated petitioner's constitutional right to due process.
United States v.
Antoine, 906 F.2d
1379 (CA9). The District Court ruled against petitioner on both
issues and reinstated his conviction. No. C85-87T (WD Wash., Aug.
21, 1991), reprinted in App. 45. The Court of Appeals then
affirmed.
967 F.2d
592 (CA9 1992) (judgt. order), reprinted in App. 66.
In the meantime, before the Court of Appeals disposed of his
first appeal in 1990, petitioner filed this civil action, seeking
damages from Ruggenberg and respondent Byers & Anderson, Inc.,
the firm that had engaged her pursuant to its contract to provide
reporting services to the District Court. Following discovery, the
District Court granted summary judgment in favor of respondents on
the ground that they were entitled to absolute immunity.
Petitioner's pendent state-law claims were dismissed on
jurisdictional grounds. No. C88-260TB,
supra, reprinted in
App. 23.
Without reaching questions of liability or damages, the Court of
Appeals affirmed.2 Reasoning that judicial immu-
2 In addition to state-law claims, petitioner's complaint had
alleged a violation of 42 U. S. C. § 1983. Noting that petitioner's
state-law claims had been dismissed on jurisdictional grounds, and
that § 1983 does not provide a basis for suit against federal
agents, the Court of Appeals assumed that the complaint alleged
facts sufficient to support a federal claim like that recognized in
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.
S. 388 (1971).
950 F.2d
1471,1473-1474 (CA9 1991). Because the only question presented
by the certiorari petition relates to the absolute immu-
432
nity is "justified and defined by the functions it protects and
serves,"
Forrester v.
White, 484 U. S. 219, 227 (1988)
(emphasis omitted), and that "the tasks performed by a court
reporter in furtherance of her statutory duties are functionally
part and parcel of the judicial process," the Court of Appeals held
that actions within the scope of a reporter's authority are
absolutely immune. 950 F. 2d, at 1475-1476.
Some Circuits have held that court reporters are protected only
by qualified immunity.3 We granted certiorari to resolve this
conflict. 506 U. S. 914 (1992).
II
The proponent of a claim to absolute immunity bears the burden
of establishing the justification for such immunity.4 In
determining which officials perform functions that might justify a
full exemption from liability, "we have undertaken 'a considered
inquiry into the immunity historically accorded the relevant
official at common law and the interests behind it.'"
Butz
v.
Economou, 438 U. S. 478, 508 (1978)
(quoting
nity defense on which the Court of Appeals based its decision,
see Pet. for Cert. i, we have no occasion to comment on the
validity of petitioner's underlying cause of action.
3 See
McLallen v.
Henderson, 492
F.2d 1298, 1299-1300
(CA8 1974); Slavin v.
Curry,
574 F.2d
1256, 1265-1266
(CA5 1978);
Green v.
Maraio, 722 F.2d
1013, 1018 (CA2 1983). The Seventh Circuit, like the Ninth,
provides absolute immunity for court reporters.
Scruggs v.
Moellering, 870 F.2d
376, 377, cert. denied, 493 U. S. 956 (1989).
4 We have consistently "emphasized that the official seeking
absolute immunity bears the burden of showing that such immunity is
justified for the function in question. The presumption is that
qualified rather than absolute immunity is sufficient to protect
government officials in the exercise of their duties. We have been
quite sparing in our recognition of absolute immunity, and have
refused to extend it any further than its justification would
warrant."
Burns v.
Reed, 500 U. S. 478, 486-487
(1991) (internal quotation marks and citations omitted).
433
Imbler v.
Pachtman, 424 U. S. 409, 421
(1976)); see also
Burns v.
Reed, 500 U. S. 478, 485
(1991).5
The skilled, professional court reporter of today was unknown
during the centuries when the common-law doctrine of judicial
immunity developed. See generally Ratteray, Verbatim Reporting
Comes of Age, 56 Judicature 368 (1973). It was not until the late
19th century that official court reporters began to appear in state
courts.
Id., at 368-369. Prior to enactment of the Court
Reporter Act in 1944,6 the federal system did not provide for
official court reporting.7 Court reporters were not among the class
of persons protected by judicial immunity in the 19th century.8
5 For purposes of immunity, we have not distinguished actions
brought under 42 U. S. C. § 1983 against state officials from
Bivens actions brought against federal officials. See
Butz v.
Economou, 438 U. S. 478, 503-504
(1978).
658 Stat. 5, as amended, 28 U. S. C. § 753.
7 In a case decided in 1942, we pointed out:
"There is no law of the United States creating the position of
official court stenographer and none requiring the stenographic
report of any case, civil or criminal, and there is none providing
for payment for the services of a stenographer in reporting
judicial proceedings. The practice has been for the parties to
agree that a designated person shall so report. The one selected
must be paid by private arrangement with one or more of the parties
to the litigation. The amount paid to him is not costs in the cause
nor taxable as such against any of the parties."
Miller v.
United States, 317 U. S. 192, 197.
8"Judicial Immunity ... was an absolute immunity from all claims
relating to the exercise of judicial functions. See,
e. g.,
T. Cooley, Law of Torts 408-409 (1880). It extended not only to
judges narrowly speaking, but to 'military and naval officers in
exercising their authority to order courtsmartial for the trial of
their inferiors, or in putting their inferiors under arrest
preliminary to trial; ... to grand and petit jurors in the
discharge of their duties as such; to assessors upon whom is
imposed the duty of valuing property for the purpose of a levy of
taxes; to commissioners appointed to appraise damages when property
is taken under the right of eminent domain; to officers empowered
to layout, alter, and discontinue highways; to highway officers in
deciding that a person claiming exemp-
434
Faced with the absence of a common-law tradition involving court
reporters themselves, respondents urge us to treat as their
historical counterparts common-law judges who made handwritten
notes during trials. We find the analogy unpersuasive. The function
performed by judicial notetakers at common law is significantly
different from that performed by court reporters today. Whereas
court reporters are charged by statute with producing a "verbatim"
transcript of each session of the court, for inclusion in the
official record, 28 U. S. C. § 753(b), common-law judges exercise
discretion and judgment in deciding exactly what, and how much,
they will write. Early judicial notetakers, for instance, left
records from which the "narrative of the trial cannot be
reconstructed"; their notes were for their own purposes in charging
the jury and were never entered into the public record. Langbein,
Shaping the Eighteenth-Century Criminal Trial: A View from the
Ryder Sources, 50 U. Chi. L. Rev. 1, 5-6 (1983).9
tion from a road tax is not in fact exempt, or that one arrested
is in default for not having worked out the assessment; to members
of a township board in deciding upon the allowance of claims; to
arbitrators, and to the collector of customs in exercising his
authority to sell perishable property, and in fixing upon the time
for notice of sale.'
Id., at 410-411 (footnotes
omitted).
"As is evident from the foregoing catalog, judicial immunity
extended not only to public officials but also to private citizens
(in particular jurors and arbitrators); the touchstone for its
applicability was performance of the function of resolving disputes
between parties, or of authoritatively adjudicating private
rights."
Burns v.
Reed, 500 U. S., at 499-500
(SCALIA, J., concurring in judgment in part and dissenting in
part).
9 Indeed, the doctrine of judicial immunity was recognized in
part to avoid imposing on judges the obligation to make complete
trial transcripts.
"If upon such allegations a judge could be compelled to answer
in a civil action for his judicial acts, not only would his office
be degraded and his usefulness destroyed, but he would be subjected
for his protection to the necessity of preserving a complete record
of all the evidence produced before him in every litigated case,
and of the authorities cited and arguments presented, in order that
he might be able to show to the judge before whom he might be
summoned by the losing party ... that he had
435
There is a second problem with respondents' theory.
Even had common-law judges performed the functions of a court
reporter, that would not end the immunity inquiry. It would still
remain to consider whether judges, when performing that function,
were themselves entitled to absolute immunity. We do not doubt that
judicial notetaking as it is commonly practiced is protected by
absolute immunity, because it involves the kind of discretionary
decisionmaking that the doctrine of judicial immunity is designed
to protect. But if we could imagine a hypothetical case in which a
common-law judge felt himself bound to transcribe an entire
proceeding verbatim, it is far less clear-and neither respondent
refers us to any case law suggesting-that this administrative duty
would be similarly protected. Indeed, we have recently held that
judges are not entitled to absolute immunity when acting in their
administrative capacity.
Forrester v.
White, 484 U. S. 219, 229
(1988).
We are also unpersuaded by the contention that our "functional
approach" to immunity, see
Burns v.
Reed, 500 U. S.,
at 486, requires that absolute immunity be extended to court
reporters because they are "part of the judicial function," see 950
F. 2d, at 1476. The doctrine of judicial immunity is supported by a
long-settled understanding that the independent and impartial
exercise of judgment vital to the judiciary might be impaired by
exposure to potential damages liability. 10 Accordingly, the
"touchstone" for the doctrine's applicability has been "performance
of the function of resolv-
decided as he did with judicial integrity .... "
Bradley
v.
Fisher, 13 Wall. 335, 349 (1872).
10 "For it 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 every one 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."
Id., at 347. See also
Mireles v.
Waco,
502 U. S. 9, 10
(1991), and cases cited therein.
436
ing disputes between parties, or of authoritatively adjudicating
private rights." 500 U. S., at 500 (SCALIA, J., concurring in
judgment in part and dissenting in part). When judicial immunity is
extended to officials other than judges, it is because their
judgments are "functional[ly] comparab[le]" to those of judges-that
is, because they, too, "exercise a discretionary judgment" as a
part of their function.
Imbler v.
Pachtman, 424 U.
S., at 423, n. 20. Cf.
Westfall v.
Erwin, 484 U. S. 292, 297-298
(1988) (absolute immunity from statelaw tort actions available to
executive officials only when their conduct is discretionary).
The function performed by court reporters is not in this
category. As noted above, court reporters are required by statute
to "recor[d] verbatim" court proceedings in their entirety. 28 U.
S. C. § 753(b). They are afforded no discretion in the carrying out
of this duty; they are to record, as accurately as possible, what
transpires in court. See
M cLallen v.
Henderson,
492 F.2d
1298, 1299 (CA8 1974) (court reporters not absolutely immune
"because their duties are ministerial, not discretionary, in
nature");
Waterman v.
State, 35 Misc. 2d 954, 957,
232 N. Y. S. 2d 22, 26 (Ct. Cl. 1962), aff'd in part, rev'd in
part, 241 N. Y. S. 2d 314 (4th Dept., App. Div. 1963) (same)Y We do
not mean to suggest that the task is less than difficult, or that
reporters who do it well are less than highly skilled. But the
difficulty of a job does not by itself make it functionally
comparable to that of a judge. Cf.
Malley v.
Briggs,
475 U. S. 335,
342 (1986) (police officer not entitled to absolute immunity for
conduct involved in applying for warrant). Nor is it sufficient
that the task of a court reporter is extremely important or, in the
words of the
11 "A court stenographer, notwithstanding the fact that he is an
officer of the court, by the very nature of his work performs no
judicial function. His duties are purely ministerial and
administrative; he has no power of decision. The doctrine [of
judicial immunity] has no application to the facts with which we
are confronted here."
Waterman, 35 Misc. 2d, at 957, 232 N.
Y. S. 2d, at 26.
437
Court of Appeals, "indispensable to the appellate process." 950
F. 2d, at 1476. As we explained in
Forrester, some of the
tasks performed by judges themselves, "even though they may be
essential to the very functioning of the courts, have not ... been
regarded as judicial acts." 484 U. S., at 228. In short, court
reporters do not exercise the kind of judgment that is protected by
the doctrine of judicial immunity.
Finally, respondents argue that strong policy reasons support
extension of absolute immunity to court reporters. According to
respondents, given the current volume of litigation in the federal
courts, some reporters inevitably will be unable to meet deadlines.
Absolute immunity would help to protect the entire judicial process
from vexatious lawsuits brought by disappointed litigants when this
happens. Requiring court reporters to defend against allegations
like those asserted here, on the other hand, would not only be
unfair, but would also aggravate the problem by contributing
further to the caseload in the federal courts.
Assuming the relevance of respondents' policy arguments, we find
them unpersuasive for three reasons. First, our understanding is
that cases of this kind are relatively rare. Respondents have not
provided us with empirical evidence demonstrating the existence of
any significant volume of vexatious and burdensome actions against
reporters, even in the Circuits in which reporters are not
absolutely immune. See n. 3,
supra. Second, if a large
number of cases does materialize, and we have misjudged the
significance of this burden, then a full review of the
countervailing policy considerations by the Congress may result in
appropriate amendment to the Court Reporter Act. Third, and most
important, we have no reason to believe that the Federal Judiciary,
which surely is familiar with the special virtues and concerns of
the court reporting profession, will be unable to administer
justice to its members fairly.
438
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
So ordered.
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