                                                                       FILED
                                                           United States Court of Appeals
                                  PUBLISH                          Tenth Circuit

               UNITED STATES COURT OF APPEALS                    August 2, 2019

                                                              Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                       Clerk of Court
                      _________________________________

VANESSA BENAVIDEZ; STELLA
PADILLA,

       Plaintiffs - Appellants,

v.                                                     No. 18-2027

NATALIE HOWARD, Albuquerque
City Clerk; JESSICA MARIE
HERNANDEZ, City Attorney;
WILLIAM ZARR, Assistant City
Attorney; NICHOLAS BULLOCK,
Assistant City Attorney,

      Defendants - Appellees.
                     _________________________________

             Appeal from the United States District Court
                    for the District of New Mexico
                  (D.C. No. 1:17-CV-00966-WJ-LF)
                     _________________________________

A. Blair Dunn, Esq., Western Agriculture, Resource and Business
Advocates, LLP, Albuquerque, New Mexico, for Plaintiffs-Appellants.

Jerry A. Walz (James J. Grubel with him on the brief), Walz and
Associates, P.C., Albuquerque, New Mexico, for Defendants-Appellees.
                       _________________________________

Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
                 _________________________________

PER CURIAM.
                       _________________________________
      Vanessa Benavidez and Stella Padilla contend that Defendants

violated their First Amendment rights by filing a motion in a civil case.

The district court dismissed their complaint. For the following reasons, we

affirm.

I.    Background

      Because Stella Padilla’s nominating petition for Albuquerque mayor

lacked the required number of valid signatures, the Albuquerque City

Clerk, Natalie Howard, rejected her request to appear on the ballot as a

candidate in the city’s 2017 mayoral election. Padilla promptly sued

Howard in her official capacity in state court for a declaration that she had

satisfied the nominating petition requirements to be a candidate for mayor.

Padilla v. Howard, No. D-202-CV-2017-03556 (Bernalillo Co., NM, filed

May 19, 2017).

      Less than a month later, Howard, represented by the city attorney’s

office in the state action, filed a “Motion for a Protective Order Against

Harassment of the Defendant by any Volunteer or Other Person Associated

with Plaintiff’s Campaign Organization.” Attached to Howard’s motion

was her “Affidavit in Support of Motion for Protective Order.” In her

affidavit, Howard complained specifically about harassing conduct that

Padilla’s daughter, Vanessa Benavidez, had exhibited toward her on two

recent occasions.



                                      2
      A week later, Howard filed a motion to dismiss Padilla’s complaint

for failure to state a claim. Without comment and with Howard’s motion

for a protective order still pending, the state district court dismissed

Padilla’s complaint with prejudice on July 7, 2017. Rather than pursuing a

direct appeal of the state court’s ruling, Padilla unsuccessfully sought a

Writ of Superintending Control from the New Mexico Supreme Court. See

N.M. Const. art. VI, § 3 (“[T]he supreme court . . . shall have a

superintending control over all inferior courts[.]”).

      Padilla and Benavidez then filed this collateral § 1983 action for

damages in federal district court on September 21, 2017. Plaintiffs’

complaint asserts that Howard’s motion for a protective order in the state

action chilled their free speech rights and effectively sought, through a

“vindictive prosecution,” to prevent them from exercising their rights to

petition the state court for redress. Plaintiffs sued not only Howard in her

official capacity, but also the city attorney, Jessica Hernandez, and the two

assistant city attorneys assigned to represent Howard in the state action,

William Zarr and Nicholas Bullock.

      The four corners of the complaint are woefully short on the facts

giving rise to Plaintiffs’ claims. The complaint alleges little more than that

Defendants, “acting in concert,” filed a motion for a protective order

inconsistent with New Mexico law “without justification and cause, solely

to harass Plaintiffs and prevent the continued criticism of the City of

                                       3
Albuquerque employees and to deny Plaintiffs the right to petition their

government for redress.”

     Attached to Plaintiffs’ complaint, however, is a copy of Howard’s

motion for a protective order and her sworn affidavit in support thereof. 1

Howard’s unrebutted affidavit states that on May 19, 2017, Benavidez

served her with Padilla’s state court complaint in the public area of the

city clerk’s office on the seventh floor of Albuquerque’s Plaza del Sol

building. But then Benavidez erroneously insisted that Howard sign the

affidavit of service. Howard refused and walked toward the door leading

into the private secured area of her office. Benavidez yelled at Howard and

told her she could not leave until she signed the affidavit. Howard attests:

“I continued to the secured area, and, as the door was closing, [Benavidez]

pushed the door open and entered into the non-public area of the clerk’s

office. [Benavidez] followed me into the secured area, stood approximately

12 inches away from me and continued to insist that I sign the affidavit.”

Benavidez left the secured area only after Howard directed staff to contact

security. Moments later, Howard departed her seventh-floor office with a

staff member and security officer to attend a meeting outside the building.



1
      Because these two attachments, Howard’s motion for a protective
order and accompanying affidavit, are central to Plaintiffs’ claims and the
authenticity of the state court documents is undisputed, we may consider
them as part of Plaintiffs’ federal complaint. See Hampton v. Root9B
Tech., 897 F.3d 1291, 1297 (10th Cir. 2018).
                                      4
When the elevator reached the seventh floor and its door opened,

Benavidez was standing alone in the elevator. Benavidez remained in the

elevator for the ride down, all the while staring at Howard.

      Howard further attests that on June 5, 2017, she was preparing to

attend a hearing in Padilla’s state action when Benavidez again confronted

her, this time on the steps of the Bernalillo County Courthouse. Benavidez

approached Howard at the top of the steps carrying a “Stella for Mayor”

sign. Benavidez “positioned herself approximately six inches away from

me while yelling at me about the case. She proceeded to walk backward

directly in front of me, with the ‘Stella for Mayor’ sign in front of my

face, blocking my path. I felt [Benavidez] was attempting to intimidate

me.” When Howard told Benavidez to stop harassing her, Benavidez

replied: “‘You don’t know what harassment is.’” Howard concluded her

affidavit by stating that Benavidez’s “pattern of conduct” had caused

Howard to become “reasonably concerned” for her physical safety.

II.   District Court’s Ruling

      Upon motion and after a hearing during which the district court

expressed legitimate reservations about numerous aspects of Plaintiffs’

federal complaint, the court entered a written order dismissing the case.

Benavidez v. Howard, No. 17-966, 2018 WL 565706 (D.N.M. Jan. 24,

2018) (unpublished). The court held that all Defendants were absolutely



                                      5
immune from Plaintiffs’ § 1983 action. 2 The court ruled that the named

Defendants from the city attorney’s office were immune because in

submitting the motion for a protective order to the state court they were

participating as advocates in the judicial process: “They did so as part of

their duty in defending City Clerk Natalie Howard against a state court

lawsuit which Plaintiff Stella Padilla initiated, and their objective in taking

that action was one of advocacy, which earmarks it for the protections of

absolute immunity.” Id. at *5. The court reasoned that the filing of the

motion for a protective order “belongs in the category of actions that are

associated with the judicial process rather than those that are investigative

or administrative in nature.” Id.

      Meanwhile, the district court held that Defendant Howard, the city

clerk, was entitled to absolute immunity because Plaintiffs’ constitutional

claims arose out of a motion based on a sworn affidavit that she presented

to the state court in a pending lawsuit. The district court explained that the



2
      In the alternative, the district court held all Defendants were entitled
to qualified immunity because Plaintiffs’ complaint failed to state a cause
of action under the First Amendment. Observing that the complaint did not
challenge the factual statements contained in Howard’s affidavit, the court
opined that the unrebutted facts attested to in the affidavit suggest
Benavidez sought to harass and intimidate Howard rather than simply
exercise her First Amendment rights: “Defendants are correct in that there
is no First Amendment right to harass or intimidate government officials,
and so Ms. Benavidez’ conduct as described in Ms. Howard’s affidavit
does not . . . constitute protected conduct in a First Amendment analysis.”
Benavidez, 2018 WL 565706, at *7.
                                       6
absolute immunity enjoyed by witnesses in judicial proceedings extends to

witnesses presenting testimony by way of affidavit. Howard’s attorneys

filed the motion for a protective order on her behalf “and it was her sworn

description of the events that transpired—that is, her testimony—that

formed the basis for the requested protective order.” Id. at *6 (emphasis in

original).

III.   City Attorney and Assistant City Attorneys

       We need not tarry long in disposing of this appeal from the district

court’s final judgment in favor of Defendants Hernandez, Zarr, and

Bullock. See 28 U.S.C. § 1291. Setting aside the obvious and multiple

facial deficiencies in Plaintiffs’ § 1983 complaint, we first address the city

attorney and assistant city attorney’s threshold defense of absolute

immunity as a complete bar to Plaintiffs’ suit. Imbler v. Pachtman, 424

U.S. 409, 419 n.13 (1976) (“An absolute immunity defeats a suit at the

outset, so long as the official’s actions were within the scope of

immunity.”). Our review is de novo. Scott v. Hern, 216 F.3d 897, 908 (10th

Cir. 2000). Public officials who seek absolute immunity, i.e., an absolute

exemption from personal liability for allegedly unconstitutional conduct,

bear the burden of showing that public policy requires an exemption of

such broad scope. Butz v. Economou, 438 U.S. 478, 506 (1978).

       The Supreme Court has explained on multiple occasions that

Congress did not intend § 1983 to abrogate immunities recognized at

                                       7
common law by way of “history and reason.” Buckley v. Fitzsimmons, 509

U.S. 259, 268 (1993). “[A]lthough ‘the precise contours of official

immunity’ need not mirror the immunity at common law, we look to the

common law and other history for guidance . . . to discern Congress’ likely

intent in enacting § 1983.” Burns v. Reed, 500 U.S. 478, 493 (1991)

(citation omitted). “In determining whether particular actions of

government officials fit within a common-law tradition of absolute

immunity, or only the more general standard of qualified immunity,” we

apply a “‘functional approach,’ which looks to ‘the nature of the function

performed, not the identity of the actor who performed it.’” Buckley, 509

U.S. at 268 (citation omitted); see also id. at 282 (Kennedy, J., concurring

in part) (citing cases). In other words, our approach concentrates “on the

conduct for which immunity is claimed, not on the harm that the conduct

may have caused or the question whether it was lawful.” Id. at 271.

     Where a public official participating in the judicial process is sued in

collateral proceedings, our focus on the effective functioning of our justice

system does not arise from a generalized concern about interfering with the

official’s duties. Rather, our focus arises from a specific concern about

interfering with “conduct closely related to the judicial process.” Burns,

500 U.S. at 493.

     The Supreme Court has interpreted § 1983 to provide absolute

immunity for the performance of certain functions “because any lesser

                                      8
degree of immunity could impair the judicial process itself.” Malley v.

Briggs, 475 U.S. 335, 342 (1986). Where providing only qualified

immunity would fail to ensure the unhindered performance of a public

official’s duties essential to the proper functioning of that process, a grant

of absolute immunity is proper. Imbler, 424 U.S. at 427–28 (emphasis

added). Today, “[f]unctions that serve as an ‘integral part of the judicial

process’ or that are ‘intimately associated with the judicial process’ are

absolutely immune from civil suits.” Rogers v. O’Donnell, 737 F.3d 1026,

1031 (6th Cir. 2013) (quoting Imbler, 424 U.S. at 430). “[O]urs is a

‘continuum based approach’ and the ‘more distant a function is from the

judicial process, the less likely absolute immunity will attach.’” Mink v.

Suthers, 482 F.3d 1244, 1261 (10th Cir. 2007).

                                     * * *

      Consistent with our functional approach to absolute immunity, such

immunity may extend to various participants in a judicial proceeding,

including government attorneys. In 1976, the Supreme Court first

recognized a prosecuting attorney’s entitlement to absolute immunity in a

§ 1983 suit. Imbler, 424 U.S. at 410. Two years later, the Court held that

“an agency attorney who arranges for the presentation of evidence on the

record in the course of an adjudication is absolutely immune from suits

based on the introduction of such evidence.” Butz, 438 U.S. at 517.



                                       9
      Relying on the Court’s reasoning in Imbler and Butz, our sister

circuits have held that absolute immunity also is available to attorneys

defending the government in civil litigation because such immunity is

necessary to achieve the independent judgment and vigorous advocacy vital

to the effective functioning of our adversarial system of justice. See, e.g.,

Auriemma v. Montgomery, 860 F.2d 273, 276 (7th Cir. 1988); Murphy v.

Morris, 849 F.2d 1101, 1105 (8th Cir. 1988); Barrett v. United States, 798

F.2d 565, 572 (2d Cir. 1986). We subsequently recognized absolute

immunity as extending to “government lawyers involved in civil

proceedings.” Robinson v. Volkswagenwerk, 940 F.2d 1369, 1373 n.4 (10th

Cir. 1991); see also Scott, 216 F.3d at 908–10 (holding a county attorney

had absolute immunity from a § 1983 claim arising out of a civil

commitment proceeding).

      Paraphrasing Buckley, the rule of absolute immunity as applied to

government attorneys charged with violating § 1983 may be stated

generally as follows: A government attorney’s administrative duties and

those investigatory functions that do not closely relate to an advocate’s

preparation for judicial proceedings are not entitled to absolute immunity.

Rather, absolute immunity shields those acts undertaken by a government

attorney in preparation for judicial proceedings and which occur in

the course of his or her role as an advocate for the government. See



                                      10
Buckley, 509 U.S. at 273; Mink, 482 F.3d at 1261 (reasoning that the

“determinative factor” in the absolute immunity inquiry is “advocacy”).

      Applying this rule to the facts of our case, we easily conclude that

Defendants Hernandez, Zarr, and Bullock are entitled to absolute immunity

for their acts of preparing and filing the motion for a protective order. 3

Unquestionably, such acts are “intimately associated” with the judicial

process, falling within the advocacy function of the city attorneys assigned

to defend the city clerk against Plaintiffs’ §1983 action. Imbler, 424 U.S.

at 430. Any lesser immunity could impair the performance of a central

actor—government defense counsel—in the “judicial process.” Malley, 475

U.S. at 343. This possibility of impairment is unacceptable. Moreover, the

public trust of the city attorney’s office might suffer if it were constrained


3
      We take judicial notice of the fact that only Defendants Zarr and
Bullock entered their appearances for Howard in Padilla’s state court
action. We further note that Plaintiffs’ § 1983 complaint alleges absolutely
no facts to support its conclusory allegation that the city attorney,
Defendant Hernandez, somehow acted in concert with Defendants Howard,
Zarr, and Bullock to deprive Plaintiffs of their First Amendment rights.

      While Hernandez, if involved in the preparation and filing of the
motion for a protective order, is entitled to absolute immunity for the very
same reasons as are Zarr and Bullock, Plaintiffs’ § 1983 claims against
Hernandez from the outset appear in tension with Fed. R. Civ. P. 11(b)’s
pleading requirement that a complaint’s “factual contentions have
evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation
and discovery.” The rules of pleading set out in Fed. R. Civ. P. 8 do “not
require ‘detailed factual allegations,’” but demand “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
                                      11
in making decisions by its attorneys’ own potential liability for damages in

a § 1983 suit. Imbler, 424 U.S. at 424–25.

      Absolute immunity for the city attorneys in this case is necessary to

protect their independent judgment by freeing them from the possibility of

harassment and intimidation associated with their defense of the city clerk.

Burns, 500 U.S. at 494 (“Absolute immunity is designed to free the judicial

process from the harassment and intimidation associated with litigation.”).

This, in turn, shields and protects the state court’s truth-finding mission

and decision-making process. Accordingly, the underlying merit or

ostensible reach of the motion about which Plaintiffs persistently complain

is beside the point. The Supreme Court has acknowledged that “for some

‘special functions,’ it is better to leave unredressed the wrongs done by

dishonest [officials] than to subject those who try to do their duty to the

constant dread of retaliation.” Id. at 484 (citation omitted). “At the same

time, the safeguards built into the judicial process tend to reduce the need

for private damages actions as a means of controlling unconstitutional

conduct.” Butz, 438 U.S. at 512.

      Of course, the possibility of professional and criminal redress, as

well as monetary and other sanctions, remain available against those who

would abuse the judicial process. Absolute immunity, however, may leave

the “genuinely wronged” without civil redress in a collateral proceeding



                                      12
against those public officials responsible. 4 Imbler, 424 U.S. at 427. But

qualifying the civil immunity of the city attorneys in their roles as

advocates for the city would “disserve the broader public interest.” Id.

Such qualification might prevent the “vigorous and fearless” defense of the

city clerk that is essential to the proper functioning of both the judicial and

election processes. Id. The Second Circuit said it best:

      [The government defense attorney’s] image may not be
      comparable to that of a prosecutor, but it is not difficult to
      conceive of situations where, although the government is the
      defendant, its counsel asserts [matters] tending to upset or excite
      resentment on the part of the civil plaintiff. . . . Although
      government defense counsel, not having selected the other party
      as the target of litigation, is in a more passive position than a
      prosecutor . . . he nevertheless functions in an adversarial arena
      where “there is, if not always a winner, at least one loser,” and
      since he is charged with a public trust he should not be inhibited
      in the faithful performance of his duties by the threat of
      harassing lawsuits against him. His function as a government
      advocate therefore entitles him to absolute immunity, which is
      “necessary to assure that advocates can perform their respective
      functions without harassment or intimidation.”

Barrett, 798 F.2d at 572 (citation and ellipses omitted).

      Accordingly, we hold a government defense attorney who, in the

course of a civil adjudication, prepares a motion and arranges for the

presentation of evidence on the court record by way of affidavit in support

of the motion, is absolutely immune from a collateral § 1983 suit for




4
     We in no way suggest Plaintiffs were “genuinely wronged” when
Defendant Howard filed her motion for a protective order.
                                      13
damages based on the filing of such motion and affidavit. See Butz, 438

U.S. at 517.

IV.   City Clerk

      For the claims against Defendant Howard, we affirm the dismissal

based on qualified immunity because Plaintiffs did not suffer a

constitutional violation.

      Under the first prong of qualified immunity, Plaintiffs bear a burden

to plead facts showing that the defendant violated a constitutional right. 5

Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012). Plaintiffs invoke

the First Amendment right to protection from retaliation for engaging in

protected activity. This claim requires allegations indicating that the

conduct would have chilled a person of ordinary firmness from engaging in

a protected activity. 6 Buck v. City of Albuquerque, 549 F.3d 1269, 1292

(10th Cir. 2008).

      The retaliation claims are based on Howard’s filing of a motion for a

protective order in state court. In this motion, Howard asked the state court

to prohibit Plaintiffs and others “from engaging in conduct directed at


5
      Under the second prong of qualified immunity, Plaintiffs must show
that the right was “clearly established” when the public official acted.
Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
6
      Plaintiffs must also plead that (1) they were engaging in a protected
activity and (2) the public official’s action was substantially motivated by
the plaintiffs’ protected activity. Buck v. City of Albuquerque, 549 F.3d
1269, 1292 (10th Cir. 2008).

                                      14
[Howard’s] person, which a reasonable person would find to be annoying,

alarming, hostile or menacing in nature.” Id. at 19. Though the state court

never ruled on the motion, Plaintiffs argue that the mere filing of the

motion created a chilling effect.

      This argument is foreclosed by Shero v. City of Grove, Okla., 510

F.3d 1196 (10th Cir. 2007). In Shero, the City of Grove initiated a state-

court proceeding against a citizen by filing a “Motion for Protective Order

and Order Determining Certain Materials Exempt from Public Disclosure.”

510 F.3d at 1199. The state district court treated this motion as a complaint

for a declaratory judgment. Id. In reaction to this filing, the citizen sued in

federal court for retaliation in violation of the First Amendment, claiming

that the city’s filing of a declaratory judgment suit had chilled him from

exercising his First Amendment rights. Id. at 1203. The federal district

court granted summary judgment to the city and we affirmed, holding that

“being properly named as a defendant in a declaratory judgment suit,

however styled, would not chill a person of ordinary firmness from

continuing to engage in constitutionally protected activity.” Id. at 1204.

      Shero presented a stronger retaliation claim than the one here. In

Shero, the city began the lawsuit; here, Padilla began the lawsuit. Yet the

panel in Shero held as a matter of law that the city’s filing of a declaratory

judgment suit would not chill a person of ordinary firmness. Under Shero,

Howard’s motion for a protective order would not chill a person of

                                      15
ordinary firmness. So Plaintiffs did not allege a violation of the First

Amendment, and the absence of such an allegation entitles Howard to

qualified immunity. We thus affirm the dismissal of the claim against

Howard based on qualified immunity. 7

V.    Conclusion

      For the foregoing reasons, we affirm the district court’s judgment. 8




7     Defendant Howard relies not only on qualified immunity but also on
absolute immunity. Given Howard’s entitlement to qualified immunity, we
need not decide whether she also enjoys absolute immunity. See, e.g.,
Ashcroft v. Al–Kidd, 563 U.S. 731, 744 (2011) (“Because [the defendant]
did not violate clearly established law, we need not address the more
difficult question whether he enjoys absolute immunity.”) We thus express
no opinion or suggestion as to Howard’s separate argument involving
absolute immunity.
8
      In their opening appellate brief, Plaintiffs also contend that the
district court violated the First Amendment by orally suggesting that
Defendants consider seeking attorney’s fees if Plaintiffs appeal. Plaintiffs’
contention is meritless.
                                      16
No. 18-2027, Benavidez v. Howard

BALDOCK, Circuit Judge, concurring in the judgment only as to Part IV.


       I concur fully in Parts I–III of the Court’s opinion. As to Part IV, I concur only in

the Court’s judgment affirming dismissal of the claims against Defendant Howard.

                                             ***

       The Court holds Defendant Howard, the city clerk, is entitled to qualified immunity

because Plaintiffs’ § 1983 complaint fails to allege a constitutional violation against her. In

disposing of the case against her on such ground, however, the Court inexplicably bypasses

the question of whether Defendant Howard is entitled to the greater protections of absolute

immunity. I would not bypass this question, but instead would decide under the facts of this

case that she is entitled to absolute immunity from § 1983 liability both as a party to the state

court proceedings and a witness offering evidence therein. A public official whose attorneys

recommend that she file a motion supported by her verified affidavit should not have to

inquire of her attorneys whether she might be sued in a collateral action if she files the

motion and affidavit. After today, I wonder if an attorney must inform such a client that any

motion filed in support of the client’s cause or any evidence presented in support thereof may

result in her adversary suing the client for damages in a collateral § 1983 action?

       Let us begin with Defendant Howard’s role as a party to the state court proceedings

out of which this § 1983 action arises. The city attorney’s office represented Defendant

Howard in her capacity as city clerk. This Court correctly grants the named Defendants from

that office, Hernandez, Zarr, and Bullock, absolute immunity from Plaintiffs’ § 1983 claims.
Of course, the foundation upon which the client-attorney relationship rests is that of principal

and agent. The agent is the principal’s representative. Whatever functions the agent

performs, therefore, in the prosecution of the business for which he has been summoned, are

the acts of the principal whom he represents. La Abra Silver Mining Co. v. United States,

175 U.S. 423, 498 (1899). Thus, the reason escapes me why Defendant city attorneys, as

agents of Defendant Howard, are entitled to absolute immunity for their role in the filing of

her motion for a protective order and sworn affidavit, but Defendant Howard, the principal

whom they represent, is not. Protecting the attorney but not the client in cases like this one

is not only nonsensical but also wrought with peril.

       Whether absolute immunity protects a public official engaged in litigation depends

not upon the identity of the official as a party or witness, but only upon “the nature of

the function performed.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). We ask

(1) whether the function performed constitutes an integral part of the judicial process, and

if so, (2) whether any degree of immunity less than absolute, i.e., qualified immunity, “could

impair the judicial process itself.” Malley v. Briggs, 475 U.S. 335, 342 (1986) (emphasis

added). The filing of a motion for a protective order and sworn affidavit to support it in the

context of ongoing civil litigation, such as occurred here, unquestionably constitutes an

integral part of the judicial process. And failing to cloak the public official filing the motion

and affidavit with absolute immunity clearly threatens to impair the judicial process by

throwing a monkey wrench into the attorney-client relationship.


                                               2
       Absolute immunity for a party filing a motion, like Defendant Howard, promotes the

public policy underlying such immunity by inhibiting interference between client and counsel

engaged in adversarial litigation. Uninhibited and unchilled communication between client

and counsel is an essential ingredient of a fair and just judicial process. The failure to

provide a public official absolute immunity from § 1983 liability for filing a motion while

cloaking her attorneys with such immunity threatens to create a conflict between client and

counsel, in turn jeopardizing the independence of counsel and vigorous advocacy demanded

by the Code of Professional Responsibility and vital to the effective functioning of our

adversarial system and its truth-finding mission. Foremost, the client may worry about being

sued collaterally if she files a motion, while her counsel, who enjoys absolute immunity, may

think the motion is necessary to an effective prosecution or defense. Alternatively, counsel

may worry about being sued in malpractice if the client is subsequently charged in a

collateral action for filing a motion then thought to be necessary to an effective prosecution

or defense of the underlying lawsuit. Or in a worst case scenario, an adversary with a weak

hand may opt to pursue a collateral action in order to create tension between client and

counsel and divert attention away from the deficiencies in her case. The mere possibility that

the client may have an interest adverse to her attorney jeopardizes the attorney-client

relationship and, in turn, the effective functioning of the judicial process.

       Here, Defendant Howard filed a motion through and upon the advice of her counsel

that she believed necessary to ensure her ability to present an effective defense to Plaintiff


                                              3
Padilla’s state court claims. The filing of this motion alone is enough to establish her

entitlement to absolute immunity from a § 1983 collateral lawsuit based on the contents of

the motion. Nonetheless, let us not forget Defendant Howard’s role as a witness in addition

to her role as a party to the state court proceedings. To render testimony in her own defense,

Defendant Howard supported her motion with a sworn affidavit. This affidavit constituted

her personal appearance before the state court. Black’s Law Dictionary 1704 (10th ed. 2014)

(defining “testimony” as “[e]vidence that a competent witness under oath or affirmation

gives at trial or in an affidavit or deposition”); Webster’s Third New Int’l Dictionary 2362

(1981) (including “a written attestation” within the definition of “testimony”).

       Unsurprisingly, “[t]he immunity of parties and witnesses from subsequent damages

liability for their testimony in judicial proceedings was well established in English common

law” undoubtedly because the function they performed was an integral part of the judicial

process. Briscoe v. LaHue, 460 U.S. 325, 330–31 (1983). This only stands to reason for

both parties and witnesses who aid the truth-seeking mission of the judiciary should be no

more liable to collateral suits for what they say and do in the discharge of their respective

functions in the judicial arena than are judges and lawyers. Yaselli v. Goff, 12 F.2d 396, 406

(2d Cir. 1926), aff’d, 275 U.S. 503 (1927) (per curiam). As Lord Mansfield declared nearly

250 years ago when speaking of the common law’s “litigation privilege:” “Neither party,

witness, counsel, jury, nor judge, can be put to answer . . . for words spoken in office.” King

v. Skinner, 98 Eng. Rep. 529, 530 (1772). The rationale for Lord Mansfield’s proclamation


                                              4
as well as the Supreme Court’s subsequent absolute immunity decisions—to free the judicial

process of harassment and intimidation that might alter a court’s decision-making process

and truth-finding mission—applies equally to parties and other witnesses presenting sworn

evidence before a court. Forrester v. White, 484 U.S. 219, 226 (1988). Any erosion of the

rule of absolute immunity for witnesses might invite new claims by unhappy litigants. At the

very least, such erosion as occurs today may deter individuals in a position to offer valuable

testimony to the court, thereby undermining the truth-seeking function of the original

proceeding by depriving the court of candid, objective, and undistorted evidence.

                                             ***

       The public policy behind absolute immunity in the present context is the protection

of the judicial process itself. Such immunity bars claims that may very well deter public

officials engaged in the process from performing their respective functions in such a manner

that the truth is free to prevail. The Court turns a blind eye to all this and fails to recognize

that its refusal to grant, let alone consider, absolute immunity for Defendant Howard poses

a real threat to the proper functioning of the judicial process. The bottom line is simply this:

If an adversary does not like what the opposing party presents to a court by way of motion,

the adversary must oppose the motion and take whatever other action deemed necessary in

the underlying lawsuit. This places the decision to sanction a party or witness under the

authority of the presiding judge assigned to adjudicate the motion rather than in the hands of

a disgruntled adversary such as Plaintiffs in this case.


                                               5
       If the risk of being haled into federal court to defend a collateral § 1983 suit is added

to the deterrent of being sanctioned by the state court, or charged with perjury or subornation

(absolute immunity does not protect criminal conduct), the risk of self-censorship detrimental

to the court’s fact-finding mission becomes far too great. For this reason, I would hold as

follows: A public official who, in the course of civil adjudication, assists her attorneys in

preparing a motion on her behalf and arranging for the presentation of evidence on the record

by way of a supporting affidavit, is absolutely immune from a collateral § 1983 suit for

damages based on the filing of such motion and affidavit.




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