In the ongoing probate litigation over the Disney estate in Lund v. Cowan, No. 20-55764 (9th Cir. 2021), the 9th Circuit recently called probate court "the Unhappiest Place on Earth" in response to Los Angeles Superior Court Judge David Cowan's actions against Walt Disney's grandson, Bradford Lund. Lund had already waited 15 years for his inheritance and won a court declaration of his mental competence. He entered into a settlement agreement to pay his trustees $14.5 million to step down.
But Judge Cowan refused to approve the settlement. Judge Cowan stated: "Do I want to give 200 million dollars, effectively, to someone who may suffer, on some level, from Down syndrome? The answer is no.”
Lund's attorney immediately informed Judge Cowan that Lund did not have Down syndrome (a 10-day trial in Arizona state court already adjudicated this). Judge Cowan refused to retract the statement. He approved the trustees' payment, but refused to allow Lund to replace them, Lund's attorneys said. Judge Cowan then appointed a temporary guardian ad litem over Lund, without holding a hearing.
Lund filed a statement of objection to Judge Cowan for judicial bias under Code of Civil Procedure section 170.1 because of the Down syndrome comment. Judge Cowan struck the statement under section 170.4(b) for setting forth "no legal grounds for disqualification."
Lund responded by suing Judge Cowan in district court, asserting due process claims under 42 U.S.C. § 1983, a Americans with Disabilities Act claim, and declaratory relief claims. The district court dismissed the claims with prejudice.
Claims Held Moot After Judge Cowan Reversed Himself:
Before briefing in the 9th Circuit was completed, Judge Cowan discharged the guardian ad litem and reassigned the case to a new judge. The 9th Circuit held this mooted most of Lund's claims.
“A party must maintain a live controversy through all stages of the litigation process.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999) (cleaned up). “If an action or a claim loses its character as a live controversy, then the action or claim becomes moot.” Id. at 797–98 (cleaned up).
The court held that Lund "no longer faces any harm from the appointment of the guardian ad litem because Judge Cowan has lifted the order appointing her. And any possibility of future harm sounds only in speculation, especially because Judge Cowan has transferred this case to another judge...."
ADA Claim Barred by Absolute Judicial Immunity:
The 9th Circuit also rejected Lund's ADA claim for money damages, invoking the doctrine of judicial immunity. “It is well settled that judges are generally immune from suit for money damages.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001).
Lund argued that Judge Cowan's derogatory and baseless comment was not specifically made in the context of ruling on a motion. Rather, Judge Cowan uttered it during a settlement hearing. The 9th Circuit rejected this distinction: "We reject a cramped and illogical reading of a judicial act that would include only instances when a judge expressly decides a formal motion or request. Indeed, the Supreme Court has remarked that even when a proceeding is “informal and ex parte,” that does not necessarily deprive “an act otherwise within a judge's lawful jurisdiction ... of its judicial character.”" Forrester v. White, 484 U.S. 219, 227 (1988).
The court describes the origin and purpose of judicial immunity:
"“Judicial immunity apparently originated, in medieval times, as a device for discouraging collateral attacks and thereby helping to establish appellate procedures as the standard system for correcting judicial error.” Id. at 225.
"Judicial immunity also serves the goal of judicial independence. As the Supreme Court has noted, “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.” Bradley v. Fisher, 80 U.S. 335, 347 (1871). Subjecting judges to liability for the grievances of litigants “would destroy that independence without which no judiciary can be either respectable or useful.” Id. In some cases, this commitment to judicial independence might result in unfairness to individual litigants. See Stump v. Sparkman, 435 U.S. 349, 363 (1978). But it is precisely in those types of unfair or controversial situations that judicial immunity may be more necessary to preserve judicial independence. Id. at 364."
Indeed, in the example of Mireles v. Waco (1991) 502 U.S. 9, after a defense lawyer failed to appear for a scheduled hearing, the judge instructed the police sent to arrest him to "rough him up a little" to teach him not to skip court dates. Despite the judge's possibly criminal actions that resulted in a police beating, the Supreme Court afforded absolute immunity because the misbehavior occurred while presiding over a court.
(Comment: Samuel Johnson, the famous British man of letters, had this to say about the doctrine that "the king can do no wrong": "'Sir, you are to consider, that in our constitution, according to its true principles, the King is the head; he is supreme; he is above every thing, and there is no power by which he can be tried. Therefore, it is, Sir, that we hold the King can do no wrong; that whatever may happen to be wrong in government may not be above our reach, by being ascribed to Majesty. Redress is always to be had against oppression, by punishing the immediate agents. The King, though he should command, cannot force a Judge to condemn a man unjustly; therefore it is the Judge whom we prosecute and punish.'" The extent to which modern Americans have expanded the privileges of the "sovereign" to nearly every agent of the state may have struck the 18th century monarchist as rather disturbing.)
Thus, the 9th Circuit held Judge Cowan's baseless accusation that Lund had Down syndrome, and his baseless assumption that this rendered him incompetent, "easily falls within the purview of a judicial act" because it was made "from the bench during an official settlement approval hearing" and "directly related to" the decision "whether to approve a proposed settlement agreement," and because "Lund's competency was central to the litigation."
The court did state it found Judge Cowan's comment "troubling." "But judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge's official duties." This includes even actions made with “malice or corruption of motive.” Forrester, 484 U.S. at 227.
The OC Register quotes Rick Black, a director at the Center for Estate Administration Reform in North Carolina, who said about this case: “The system is broken. This is purely an estate-trafficking case and it is being managed by predatory attorneys.” The 9th Circuit, on the other hand, suggests Lund's remedy is through the appellate courts, not federal lawsuits. But I have seen probate and conservatorship cases just get even further mired in the Court of Appeal.
In this commentator's view, what is needed is legislative reform. When basic civil liberties and bodily autonomy are concerned, the needful thing is to have lawyerly standards. The probate system has too few of these. Elastic discretionary standards, which are more typical of the probate system, afford no safeguards to a person's basic rights. They also neuter the right to meaningful appellate review.
The current system also tends to elevate dubious medical guesswork to the status of hard evidence. In the 1800s some doctors insisted that slaves ran away because of a medical condition, dubbed drapetomania. The basis problem persists today. Some years ago the American Psychoanalytic Association's public information committee wrote in its newsletter: "Indeed, there is indication of increasing derogation of analysis in the past few years." To address the problem, the Association hired a public relations consultant. To which a critic responded: "more might be accomplished if psychoanalysis were to undertake to rehabilitate its theory rather than its public image."
In the same way, our system of justice in probate court is not meant to proceed by diagnosing the opposition. We would do well to reform that system, rather than to simply continue pressing the various guilds at play into service.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.