Sunday, September 27, 2009

Ex-judges’ immunity claims attacked

Legal scholars want fed judge to nix Conahan and Ciavarella claim of immunity from class action lawsuit.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter Pennsylvania, Sept. 23, 2009


SCRANTON – A group of 19 former judges and legal scholars concerned about protecting the integrity of the judicial system have filed court papers opposing efforts by former Luzerne County judges Michael Conahan and Mark Ciavarella to have themselves dismissed from a class action lawsuit.

The group, which consists of several former high-ranking judges in the state and federal court systems, filed court documents Tuesday that urge a federal judge to reject Conahan’s and Ciavarella’s claims that they are protected from liability by judicial immunity. To grant the judges that protection would make a “mockery” of the legal doctrine, the group says, and destroy the public’s trust in the legal system.

“Application of immunity to judges who admitted under oath to engaging in a criminal scheme for years would indeed be monstrous,” attorney Sara B. Richman, who filed the brief on behalf of the legal scholars, says in court papers. “To find immunity would denigrate the respect of the public for the judiciary, which is dependent upon judges making decisions based on the law and the facts, rather than personal, corrupt motives.”

The legal brief supports a separate court action filed by the Juvenile Law Center that asks a judge to deny Conahan’s and Ciavarella’s motion to dismiss them from a class-action suit filed by the JLC. That suit alleges Conahan and Ciavarella wrongly incarcerated hundreds of juveniles as part of a scheme that netted the ex-judges $2.8 million in improper payments.

The JLC’s legal position focuses on the argument that the actions the ex-judges took were administrative, not judicial, and therefore do not qualify them for judicial immunity.

The legal scholars, who are not otherwise involved in the case, are more interested in ensuring the intent of the judicial immunity doctrine – which they say is to protect judges from liability for doing their jobs righteously – is not expanded to protect jurists who use their position to commit crimes.

Abraham Gafni, a Villanova University law professor who is among those who filed the legal brief, said he decided to get involved because it’s crucial to set limits on how far judicial immunity can be stretched.

“There was a sense of perversion of the legal doctrine of judicial immunity, that it was being applied where it was never intended to be applied,” said Gafni, a former court of common pleas judge. “Judicial immunity is not meant to protect judges who are admittedly engaging in criminal activity.”

Conahan and Ciavarella pleaded guilty in February to corruption charges, but they withdrew the plea in August after a judge rejected the terms of the deal.

On Sept. 9 a federal grand jury issued a 48-count indictment against the men, accusing them of improperly taking payments in exchange for judicial rulings that benefited the construction and operation of two juvenile detention centers that were utilized by the county.

Federal prosecutors allege Conahan closed down the county’s facility in 2002 to pave the way for the centers. Ciavarella then ensured the facilities maintained a high occupancy rate by incarcerating juveniles even when probation department officials recommended against detention.

In their brief, the legal scholars concede that the doctrine of judicial immunity must be broadly interpreted to protect judges from frivolous lawsuits filed by disgruntled plaintiffs.

That’s based on the assumption that judges are acting in the interest of the public, however. That’s clearly not the case with Conahan and Ciavarella, they say.

“For Conahan and Ciavarella to argue their admitted criminal conduct was in the public interest makes a mockery of the necessary doctrine of judicial immunity,” the brief says. “It is hard to imagine conduct less deserving of immunity protection than the wholesale sale of children into detention.”

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