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March 21, 2003


The opinion of the court was delivered by: John D. Bates, United States District Judge


Plaintiff Jimmy C. Chisum ("plaintiff") brings this action for damages against John O. Colvin ("defendant"), a Judge of the United States Tax Court, alleging violations of the Constitution and the Federal Racketeering and the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. § 1961, et seq. Defendant moves to dismiss the action on the grounds that he has absolute immunity from suit and that plaintiffs amended complaint fails to state a cause of action. For the reasons stated below, defendant's motion is GRANTED.*fn1


Plaintiff a business and estate planner, alleges that in July 1997, the Commissioner of the Internal Revenue Service determined a deficiency against Frank W. George ("George"). First Am. Compl. ¶¶ 3, 5. The Commissioner concluded that George had a business relationship with Arivada Health Enterprises Trust ("Arivada"), that Arivada was a sham, and that income received by Arivada was attributable to George. Id. ¶ 5-6. George then filed a timely petition with the United States Tax Court challenging the Commissioner's determination. Id. ¶ 9. The petition was heard by defendant. who entered a decision in the Commissioner's favor. Id. ¶ 15; see also George v. Commissioner of Internal Revenue, 78 T.C.M. (CCH) 816, 1999 WL 1060708 (T.C.M. November 23, 1999) (attached as Ex. A to Def's Mot. Dismiss Action).

Plaintiff alleges that defendant lacked jurisdiction to adjudicate George's petition. Id. ¶¶ 9-15. As a result, plaintiff purportedly "has been forced to expend substantial time and effort to protect the interests and assets of the Trust that would not have been necessary but for the Defendant's failure to dismiss Mr. George's case." Id. ¶ 16.

Plaintiff also alleges that defendant "and other unnamed and unknown confederates and conspirators have used the Deficiency process, not for determining whether the correct amount of tax is paid by the party owing the tax, but for the expressed purpose of `putting the Plaintiff out of business.'" Id. ¶ 18. According to plaintiff, the overt acts in furtherance of the conspiracy included the issuance of Notices of Deficiency declaring invalid the trusts used by plaintiff in his estate and business plans, the issuance of Final Partnership Administrative Adjustments to various Limited Liability Companies used by plaintiff disallowing deductions and credits claimed by those entities, and the agreement among judges on the Tax Court to dismiss any petitions filed by plaintiff. Id. ¶¶ 19, 22.


I. Absolute Immunity

It is well-established that judges enjoy immunity from liability for damages for acts committed within their judicial jurisdiction. Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam); Pierson v. Ray, 386 U.S. 547, 553-554 (1967). This immunity is not overcome by allegations of bad faith or malice. See Mireles, 502 U.S. at 12. Rather, the immunity is overcome in only two sets of circumstances: "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Id. at 11-12 (internal citations omitted).

The allegations set forth by plaintiff do not fall within either of these categories. Plaintiffs amended complaint centers around the fact that defendant affirmed the Commissioner's determination of a deficiency and entered judgment against George. This was undoubtedly a "judicial" act, and therefore not within the first exception to immunity. See id. at 12 ("`[Wlhether an act by a judge is a `judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.'" (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)).

With respect to the second exception, plaintiff asserts that the "property rights and any contractual rights between the Plaintiff, the Trust, and Mr. George were private rights beyond the jurisdiction and authority of the Defendant and the Commission to determine." First Am. Compl. ¶ 10. In assessing this allegation, the Court must be mindful that "the scope of the judge's jurisdiction must be construed broadly where the issue is the immunity of the judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction.'" Stump, 435 U.S. at 356-57 (internal quotation marks and citation omitted).

Here, George himself petitioned the Tax Court for relief from the Commissioner's determination. The Tax Court generally has jurisdiction to review such a petition. See 26 U.S.C. § 6213, 6214. Plaintiff has cited no authority for the highly dubious proposition that the Tax Court lacks subject matter jurisdiction to review a petition from a deficiency determination of the Commissioner just because the Commissioner's determination implicates a trust in which a third party (here, plaintiff) has some interest. Moreover, to the extent that plaintiffs argument is that the Tax Court lacked personal jurisdiction to adjudicate George's claim because plaintiff was not a party to the Tax Court proceeding, plaintiff still cannot surmount the immunity barrier. Even if plaintiff were correct that defendant should not have proceeded without plaintiff as a full participant, "a judge is entitled to immunity even if there was no personal jurisdiction over the complaining party." Ashelman v. Pope. 793 F.2d 1072, 1076 (9th Cir. 1986); accord John v. Barron, 897 F.2d 1387, 1392 (7th Cir. 1990); Green v. Maraio, 722 F.2d 1013, 1017-18 (2d Cir. 1983); see also Crabtree v. Muchmore, 904 F.2d 1475, 1477 (10th Cir. 1990). Subject matter jurisdiction is sufficient. See Ashelman, 793 F.2d at 1076; John, 897 F.2d at 1392.

In sum, there is no ground upon which this Court can conclude that defendant acted in the clear absence of all jurisdiction." See Stump, 435 U.S. at 357.*fn2 Accordingly, defendant is immune from suit on plaintiffs claims to the extent that those claims are based upon ...

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