Wisconsin Judge’s Dubious Claim of Judicial Immunity From Federal Prosecution

Milwaukee County Circuit Court Judge Hannah C. Dugan was arrested and later indicted for allegedly obstructing the apprehension of an illegal alien by agents of ICE (Immigration and Customs Enforcement). On May 14, 2025, attorneys representing Judge Dugan filed in the U.S. District Court for the Eastern District of Wisconsin a Defendant’s Motion to Dismiss, claiming that any prosecution of Judge Dugan under 18 U.S.Code Section 1071 and 18 U.S. Code Section 1505 was barred by judicial immunity. (I was not able to find a copy of the federal indictment online or any news article that quoted the language of the indictment. Since the Motion to Dismiss refers to 18 U.S. Code Sections 1071 and 1505, I assume those provisions of federal law are cited as the legal basis of the indictment.) A copy of the Motion to Dismiss is available here.

In support of the Motion to Dismiss, the attorneys argue: (1) the common law doctrine of judicial immunity protects Judge Dugan, (2) Congress did not explicitly abrogate the common law doctrine of judicial immunity when it enacted 18 U.S. Code Sections 1071 and 1505; (3) the indictment of Judge Dugan violates the Tenth Amendment of the U.S. Constitution; and (4) the indictment violates the sovereignty of the State of Wisconsin and interferes with Wisconsin Constitution Article VII, Sections 2 and 7. For the reasons that follow, the Motion to Dismiss fails to support the dubious claim that Judge Dugan is immune from federal prosecution. 

The doctrine of judicial immunity does not immunize a judge from criminal prosecution.  Although judges have broad immunity from being civilly sued for their judicial action, such immunity does not extend to criminal prosecutions. See, e.g., Dennis v. Sparks, 449 U.S. 24, 31 (1980)(citing O’Shea v. Littleton, 414 U.S. 488, 503 (1972)). See also Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991)(“The Court, however, has recognized that a judge is not absolutely immune from criminal liability . . . .”) and Forester v. White, 484 U.S. 219, 228 (1988)(noting “this Court declined to extend immunity to a county judge who had been charged in a criminal indictment with discriminating on the basis of race in selecting trial jurors for the county’s court.”) 

Since the doctrine of judicial immunity does not immunize a judge from criminal prosecution, it is irrelevant that Congress did not explicitly abrogate the common law doctrine of judicial immunity when it enacted U.S. Code Sections 1071 and 1505. 

Nothing in the Tenth Amendment of the U.S. Constitution refers to the doctrine of judicial immunity, explicitly or implicitly. The Motion to Dismiss engages in hyperbole when it states “Criminalizing the official acts of a state court judge controlling her courtroom would implicate all the concerns that motivated the Tenth Amendment.” Not all acts committed by a judge in a courtroom are sacrosanct and immune from possible criminal prosecution. As the U.S. Court of Appeals for the Seventh Circuit (which includes Wisconsin) stated in United States v. Isaacs, 493 F.2d 1124, 1144 (7th Circuit 1974)(“Criminal conduct is not part of the necessary functions performed by public officials. Punishment for that conduct will not interfere with the legitimate operations of a branch of government.”). Furthermore, as noted above, the Forester v. White case specifically identified an earlier Supreme Court case in which the Supreme Court had declined to extend judicial immunity to a county judge criminally charged for the judge’s conduct in selecting trial jurors. Since engaging in criminal conduct is not part of Judge Dugan’s judicial duties, a federal prosecution of Judge Dugan for alleged violation of U.S. Code Sections 1071 and 1505 does not interfere with or violate Wisconsin’s sovereignty. 

The Motion to Dismiss’s citation to the Wisconsin Constitution fails to support the claim of judicial immunity. The Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) states the following: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,” (capitalization in original; bold added). Nothing in the language of the Tenth Amendment amended, restricted or limited the Supremacy Clause. Because of the Supremacy Clause, the Wisconsin Constitution and Wisconsin state law cannot bar enforcement of a federal criminal statute. 

Of course, nothing in my arguments has any bearing on the guilt or innocence of Judge Dugan. Like any other defendant, Judge Dugan is entitled to the presumption of innocence and the prosecution has the burden of proving its case against Judge Dugan beyond a reasonable doubt. But, for the reasons stated in this article, Judge Dugan is not entitled to have the federal indictment against her dismissed because she is a Milwaukee County Circuit Court Judge claiming that her actions were part of her official judicial duties.