Grant

The appellant, Virginia Marie Grant, successfully sued a state court judge, appellee and cross-appellant Lee Johnson, in federal district court, and obtained declaratory relief under 42 U.S.C. § 1983 . The district court declared unconstitutional provisions of Oregon’s then existing statutory provisions for the appointment of a temporary guardian for a person deemed to be mentally incompetent. The district court entered the declaration but denied the appellant attorneys’ fees. She appealed and the judge cross-appealed. Before the appeal was heard, however, the Oregon legislature amended the statute to cure the deficiencies which had led to the district court’s decision, and now both sides agree that the underlying litigation, and hence the cross-appeal, is moot. The appellant’s appeal from the denial of fees, however, remains viable. Because we find that the judge was not a proper party defendant in this case, we must affirm the judgment of the district court.

At the time this suit was filed, the Oregon statute in question permitted a judge to appoint a temporary guardian without notice or hearing. See ORS 126.133 (1973) (amended 1991). Judge Johnson made such an appointment when…