Ex-Pa. Judges in ‘Kids for Cash’ Scandal Win Partial Civil Immunity
Leo Strupczewski
November 23, 2009
The Legal Intelligencer
http://www.law.com/jsp/article.jsp?id=1202435741568&ExPa_Judges_in_Kids_for_Cash_Scandal_Win_Partial_Civil_Immunity&hbxlogin=1
Two former Luzerne County, Pa., judges who are facing federal criminal charges have been granted partial immunity in a civil suit brought by a class of juveniles who claim their rights were violated in the wake of the Luzerne County judicial scandal.

Writing that judicial immunity does not operate on a “sliding scale,” U.S. District Judge A. Richard Caputo has ruled, in Wallace, et al. v. Powell, et al., that Michael T. Conahan and Mark A. Ciavarella Jr. are protected by immunity from facing legal action for their courtroom acts.

“The degree of corrupt behavior is not the touchstone of the immunity doctrine’s application,” Caputo wrote. “The doctrine holds that judges with bad intentions, as well as those with good intentions, are immune from suit.” The ruling is a blow to the juveniles.

Conahan and Ciavarella are facing a 48-count racketeering indictment for allegedly accepting $2.8 million from the builder and former co-owner of private juvenile detention facilities. Both federal investigators and attorneys for the juveniles have alleged those payments motivated the judges to send children to those facilities.

While Caputo’s ruling does not put an end to the litigation, it does mean that Ciavarella will escape liability “for the vast majority of his conduct in this action,” Caputo said.

Ciavarella, the juvenile delinquency court judge during the time frame noted in the suit, allowed more than half of the juveniles who appeared before him to do so without representation or a proper colloquy. He is the judge who sentenced the juveniles in the suit.

Caputo wrote that he recognized his decision was “against the popular will,” but defended his ruling throughout his 26-page memorandum and order.

The doctrine of judicial immunity, he wrote, is grounded in the notion that all judgments are final, judicial independence must be protected, sincere judges should be protected from continual legal action and the justice system is to be protected from falling into disrepute.

Such notions have been around since the days of Lord Coke, the former chief justice of England, Caputo wrote, and are “as valid today as they were four hundred years ago.” “Subjecting judges to a determination of the existence of good faith on a case by case basis is not desirable,” Caputo wrote. “It would create chaos and undermine judicial independence. It would eliminate the finality of judgments and destroy public confidence in the judiciary. Every decision by every judge would be subject to attack (in court) on the basis that it was not an honest mistake.” In reaching his decision, Caputo cited four U.S. Supreme Court cases that have addressed judicial immunity in the past.

The plaintiffs, led by the Philadelphia-based Juvenile Law Center, had argued from the beginning that neither Conahan nor Ciavarella should be granted immunity because their acts were so far outside the norm.

Ciavarella’s corruption, the JLC argued, was so egregious that he was not acting as a judge while he was adjudicating juveniles delinquent and sentencing them.

Caputo rejected that argument, citing the U.S. Supreme Court’s 1988 decision in Forrester v. White.

In that case, the U.S. Supreme Court wrote that a judicial act “does not become less judicial by virtue of an allegation of malice or corruption of motive.” Caputo continued his analysis, writing that the U.S. Supreme Court’s 1978 decision in Stump v. Sparkman held that the question concerning judicial immunity is not related to the intent of a judge or the extent of the judge’s error.

“The only question is objectively whether the alleged action is one that traditionally a judge would perform or that the parties expected would come from the judge in an official capacity,” Caputo wrote.

Caputo also wrote in his opinion that both Conahan and Ciavarella still face liability — just not as much as before.

“For example, Conahan’s signing of a ‘Placement Agreement’ would be an administrative, not judicial act,” Caputo wrote.

“Similarly, any acts in making budget requests to the Luzerne County commissioners would also be administrative or executive in nature. And the actions of Conahan and Ciavarella in coercing probation officers to change their recommendations is outside the role of a judicial officer.” Caputo wrote that he recognized the “egregious nature” of the allegations, but continuously stressed that was not the true issue.

“This is, however, about the rule of law,” Caputo wrote. “It is about the rule of law in the face of popular opinion which would seek a finding directly contrary to the result the rule of law dictates.” Marsha Levick, chief counsel for the JLC, called Caputo’s decision that the judges remain exposed to civil liability for their out-of-court conduct an important victory for the plaintiffs and the community.

“What is important to everybody is that the judges have not been dismissed from the lawsuit and we will have an opportunity to pursue our allegations against them and pursue our claims for damages,” Levick said.

Levick said the JLC recognized a risk that the court would grant immunity for the judges’ courtroom conduct. It argued that the constitutional violations that occurred in Ciavarella’s courtroom pushed the case outside the arena for judicial immunity in the United States. “We’re talking about 6,000 violations over the course of five years,” Levick said.

Levick said the issue would be considered interlocutory for the plaintiffs and that the JLC’s clients would not have an automatic right of appeal.

Levick said the judges would have 30 days to appeal the decision.

The court docket did not provide contact information for Conahan or Ciavarella, both of whom are representing themselves pro se.

While the federal government’s case against the former judges centers on their roles in allegedly taking money from attorney Robert Powell, the owner, and Robert Mericle, the builder, of a juvenile detention facility and the judges’ alleged abuse of the rights of juveniles sentenced to PA Child Care, sources close to the investigation and inside Luzerne County say the scam some in the media have labeled “kids for cash” was just the tip of the iceberg and only the most blatant example of the corruption allegedly overseen by the two judges.

The Legal Intelligencer has previously reported Conahan’s ties to admitted felons, including reputed mob boss William “Billy” D’Elia. Multiple sources have said that Conahan and his father also had links to Joseph Scalleat and Michael “Hoppy” Carsia.

According to a former member of the now-defunct Pennsylvania Crime Commission, Scalleat and Carsia ran the mob in Hazleton, Pa., for years.

The Legal Intelligencer has also previously reported that federal investigators are looking at allegations of case-fixing in Luzerne County, particularly UM/UIM arbitration cases, as well as criminal case-fixing.