BERNARD P. ALICKI, APPELLANT,
v.
THE HONORABLE MIETTE K. BURNSTEIN, AS CHIEF JUDGE OF THE SEVENTEENTH JUDICIAL CIRCUIT, APPELLEE
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The court reversed the dismissal of a complaint against a judge for failure to state a cause of action, holding that the plaintiff should be permitted to amend the complaint to potentially overcome judicial immunity defenses, though the court noted formidable obstacles remain.
A complaint against a judge dismissed for failure to state a cause of action should be remanded to permit amendment, as the applicability of judicial immunity exceptions and theories of successor liability cannot be determined until the amended complaint is framed.
[1] A complaint against a judge alleging a discretionary judicial decision is not subject to dismissal with prejudice for failure to state a cause of action without permittin…
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The court acknowledged that although appellant faces formidable obstacles in overcoming judicial immunity, he is entitled to attempt to amend his complaint to state a viable cause of action.
Appellant filed an amended complaint against the Honorable Miette K. Burnstein, Chief Judge of the Seventeenth Judicial Circuit, complaining of a disc…
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PER CURIAM.
The order on appeal dismissed an amended complaint with prejudice for failure to state a cause of action in that appellee’s action of which appellant complained was a discretionary judicial decision to which absolute judicial immunity attached. The complaint was properly dismissed for failure to state a cause of action. However, we are unable to say that appellant could not under any circumstances amend his complaint to state a cause of action. Until the amendment is framed it cannot be stated with any certainty whether the exception to judicial immunity enunciated in Forrester v. White, — U.S. -, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), will or will not apply or whether a form of limited judicial immunity may be applicable. Further, we are unable to ascertain what theory appellant would rely upon to impose personal liability for wrongs allegedly committed by one holder of the office of chief judge upon his successor to that office. These are formidable and, indeed, may be insurmountable obstacles which appellant will face upon remand. Nonetheless, he is entitled to make that effort.
We reverse and remand with instructions to permit amendment of the complaint within a reasonable time.
REVERSED and REMANDED.
HERSEY, C.J., and DOWNEY and ANSTEAD, JJ., concur.