A group of 20 former judges and legal scholars have written an amicus curiae brief in the class action suit against two former Luzerne County judges and others, supporting arguments that Michael T. Conahan and Mark A. Ciavarella Jr. should not be able to invoke the doctrine of judicial immunity.
They say the doctrine cannot cover judges who have admitted to criminal conduct because of public policy concerns. The brief comes less than two weeks after plaintiffs attorneys urged U.S. District Court Judge A. Richard Caputo, in an 87-page filing, to reject the former judges' claims of judicial immunity.
The group is composed of several well-known members of the Pennsylvania legal community -- including former Superior Court Judge Phyllis W. Beck; former U.S. District Court Judge James T. Giles; former 3rd U.S. Circuit Court of Appeals Judge Timothy K. Lewis; Doris DelTosto Brogan, the acting dean of Villanova University School of Law; Roger Dennis, the founding dean of the Earle Mack School of Law at Drexel University; and JoAnne Epps, dean of Temple University's Beasley School of Law -- as well as Bobbe Bridge, a former chief justice of the Washington State Supreme Court.
The group filed the brief Monday.
The group's attorney, Sara B. Richman of Pepper Hamilton in Philadelphia, did not return a call seeking comment. However, Epps and Abraham Gafni, a professor at Villanova University School of Law, said they were approached by attorneys involved in the class action suit about signing on to an amicus curiae brief.
Both said the issue of judicial immunity in the wake of criminal charges or admission of criminal wrongdoing, though rare, is important. Gafni said it's an issue he thinks the 3rd Circuit would likely want to address and such cases are not readily available.
"Very rare is the allegation that a judge was actually committing a crime," Gafni said. "Even rarer would be the case where the judges admitted it, in a sense, by pleading guilty."
Said Epps: "This issue, about the relationship of judicial immunity in the wake of criminal charges, is a modest example of something that can impugn judicial integrity."
A motion accompanying the brief makes it clear that members are concerned a ruling contrary to their stance would damage the "integrity and public trust in an independent judiciary." It was signed by Richman, Giles and Barbara Mather, all of Pepper Hamilton.
In separate filings July 27, both Conahan and Ciavarella argued they should be dismissed from the civil suits alleging violations of constitutional rights and the civil RICO statute because they were acting in their judicial capacities when they allegedly accepted more than $2.6 million from the builder and a former co-owner of two private juvenile detention facilities. Further, Ciavarella argued, he was acting in his judicial capacity when he sentenced juveniles to those facilities. Conahan additionally argued he was protected by legislative immunity for his role in eliminating funding for a county-owned facility.
Writing that the issue of whether a judge who has admitted to criminal wrongdoing may be protected by judicial immunity is one of first impression for the federal court system, the group relied on public policy concerns and reasoning.
The group could only find one instance in which a court extended immunity to an admittedly criminal act, it wrote, and urged Caputo to deviate from that decision because it was non-precedential.
In the brief, the group argued judicial immunity is designed to protect judges from "harassing, meritless lawsuits brought by dissatisfied litigants." It cannot, however, extend to admitted criminal conduct, the group wrote, because such conduct cannot be considered judicial acts.
And though Conahan and Ciavarella have since withdrawn their conditional guilty pleas, their admissions of guilt before U.S. District Judge Edwin M. Kosik "are indelible and for civil liability purposes suffice as incontrovertible admissions no matter the outcome of the criminal trial which is now expected," the group wrote.
The former judges are charged with racketeering and related charges for allegedly taking $2.8 million in payments from the builder and former co-owner of two private juvenile detention facilities, PA Child Care and Western PA Child Care. Conahan and Ciavarella had originally entered conditional guilty pleas in the case, but withdrew those admissions when Kosik rejected the terms of their plea agreement. Prosecutors responded by securing a 48-count indictment against them Sept. 9.
"Judicial immunity has deservedly broad scope to protect judges as they act in their judicial capacity, which is presumed to be always for the benefit of the public interest," the group wrote in its brief. "However, the public policy underlying judicial immunity -- the protection of judicial independence and integrity -- would be severely undermined by bowing to defendants' assertions in this case. For Conahan and Ciavarella to argue that their admitted criminal conduct was in the public interest makes a mockery of the necessary doctrine of judicial immunity. It is hard to imagine conduct less deserving of immunity protection than the wholesale sale of children into detention."
Though attorneys for the plaintiffs in the case did not focus on the former judges' original admissions of guilt, the group's argument echoes that which the class made in its Sept. 10 reply brief.
Attorneys for the plaintiffs wrote neither Ciavarella nor Conahan was entitled to judicial immunity because the acts "critical" to their scheme -- their alleged efforts to close a county-run facility and steer juveniles to the private facilities -- were administrative in nature. Further, the attorneys argued, Ciavarella could not claim immunity because his "'courtroom' was not a true courtroom and his challenged acts were not 'truly judicial acts.'" Conahan was likewise individually barred from a claim of legislative immunity because his actions to "remove funding" for the county-owned juvenile detention facility were political in nature. President judges, the attorneys wrote, are not provided with the power "to create, vote on, or sign into law a county budget" under Pennsylvania law.
"Hardly a one-victim, isolated case of government corruption, the scandal is uniquely distinguished by its duration and magnitude, the extraordinary amount of money -- $2.6 million -- that changed hands, and, most reprehensible of all, the fact that its victims were the most vulnerable members of our society -- our children," the plaintiffs attorneys wrote. "In their unlawful and self-dealing pursuit of personal wealth, Ciavarella and Conahan profoundly undermined core principles of our judicial system."
For more coverage on Luzerne County, visit The Legal Intelligencer's Luzerne County Scandal page.