In Rolon v. Henneman, the Second Circuit Court of Appeals considered whether absolute immunity should apply to witnesses in an arbitration proceeding. The common law doctrine of absolute immunity from civil liability for judges has a long pedigree dating back to English courts. When the United States Supreme Court reaffirmed the doctrine after Congress passed 42 U.S.C. § 1983, the Court cautioned against extending the doctrine beyond judges. Since then, however, the doctrine has been extended to prosecutors and witnesses at public trials, and more recently, to arbitrators and arbitral institutions. Whether absolute immunity should be further extended to witnesses at an arbitration proceeding had not been considered by U.S. courts before Rolon. In the instant decision, however, the Second Circuit found that the functional similarity between a witness' testimony in an arbitration proceeding and a witness' testimony in a regular judicial proceeding was sufficient to extend absolute immunity to a witness in an arbitration proceeding. Unfortunately, the court was intentionally vague on the minimum similarities necessary to afford absolute immunity, leaving room for speculation as to when absolute immunity applies and when it does not.
W. Monroe Bonnheim,
Immunity and Justice for All: Has the Second Circuit Overextended the Doctrine of Absolute Immunity by Applying It to Arbitration Witnesses,
2009 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2009/iss1/9