Even the doctrine of absolute judicial immunity proved to be too weak a defense for the two disgraced former Luzerne County judges who are the leading figures in Pennsylvania's "kids-for-cash" scandal.
A federal judge has ruled that the pair -- Michael T. Conahan and Mark A. Ciavarella Jr. -- are immune only for actions they took in court or while ruling on cases, but that they can still be sued for their roles in an alleged conspiracy to take kickbacks from the owner and builder of a privately run juvenile prison. Conahan had also asserted a defense of legislative immunity, arguing that some of the allegations lodged against him stemmed from the funding decisions he made in his role as president judge.
But U.S. District Judge A. Richard Caputo rejected that argument, saying: "It does not appear that Conahan had the type of general policy-making power that would cloak his actions with legislative immunity."
The ruling means that Conahan and Ciavarella face possible liability for their roles as the alleged architects of the larger alleged conspiracy to cut off all funding for the then-existing county-owned juvenile facility and to take kickbacks in return for ensuring a steady stream of incarcerated youths so that the new, privately run facility would be profitable.
The two former judges were hit by federal prosecutors in September 2009 with a 48-count indictment containing charges of racketeering, fraud, money laundering, extortion, bribery and federal tax violations in connection with allegedly accepting more that $2.8 million from the builder and former co-owner of a private juvenile detention facility. Conahan agreed in April to plead guilty to one RICO count.
Caputo's 12-page opinion in Dawn v. Ciavarella, handed down on Monday, also included a few setbacks for the plaintiff, Wayne Dawn, who claims he was one of the victims of the scheme when he was sentenced to the juvenile facility in 2005.
First, Caputo found that Dawn's RICO claims must be dismissed because he lacks standing to pursue such a claim.
Under RICO, a plaintiff must plead an injury to "business or property," Caputo noted, and the courts have consistently rejected the notion that personal injury or mental distress can satisfy that requirement.
"Injury for RICO purposes requires proof of concrete financial loss, not mere injury to an intangible property interest," Caputo wrote.
Dawn's claim fell short of that test, Caputo found, because he "has not alleged sufficient injury to business or property to confer standing to bring a claim pursuant to RICO. Plaintiff's claims for loss of sense of well-being, emotional trauma and stigma are not the type of concrete financial loss that is envisioned by the phrase 'injury to business or property.'"
Caputo also ruled that Dawn cannot pursue any claims against the Luzerne County Juvenile Probation Department or Sandra Brulo, the probation department's former deputy director of forensic programs.
"Because Juvenile Probation is an arm of the state that is immune to suit pursuant to the 11th Amendment and Pennsylvania has not waived its immunity to suit, its motion to dismiss will be granted," Caputo wrote.
As for Brulo, the judge concluded that the allegations in Dawn's lawsuit were too thin to justify allowing the claims to proceed to the discovery stage. "There are no specific factual allegations made against Brulo. Instead, there are blanket assertions about what all defendants did collectively, many of them consisting of legal conclusions, such as defendants aiding and abetting each other in this conspiracy," Caputo wrote.
Dawn's complaint, Caputo said, "is littered with the type of bald assertions and legal conclusions warned against by the Supreme Court" in its recent decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal.
"Plaintiff has not alleged any actions taken by Brulo specifically and, therefore, has failed to raise a reasonable expectation that discovery will reveal evidence that Brulo violated plaintiff's rights," Caputo wrote.
The main focus of Caputo's opinion was tackling the arguments lodged by Conahan and Ciavarella, both of whom are acting as their own lawyers and had sought a dismissal of all claims.
Caputo concluded that while the former judges are entitled to assert absolute judicial immunity, it was not enough to end the case because Dawn's suit accuses the judges of taking steps in the alleged conspiracy that went beyond their roles as judges.
According to the suit, Conahan and Ciavarella struck an agreement with attorney Robert Powell and Robert K. Mericle, the owner of a local construction company, to build a new, privately owned juvenile detention center in Luzerne County as a replacement for the adequate, publicly owned juvenile detention center already in existence.
For the new facility to be financially viable, the suit alleges, it would require a regular stream of juvenile defendants, and Conahan and Ciavarella agreed to divert large numbers of juveniles into the new facility in order to gain more than $2.8 million in kickbacks.
To hide these ill-gotten proceeds, the suit alleges, Conahan and Ciavarella transferred the money via wire transfer to various corporations controlled by them. Their cooperation in the conspiracy allegedly included removing all funding from the publicly run detention center, having juveniles moved to the new privately owned facilities built by Mericle and operated by Powell, agreeing to guarantee placement of juvenile defendants in the new facilities, ordering juveniles to be placed at the private facilities and assisting the new juvenile detention centers in securing agreements with Luzerne County.
Caputo ruled that, under the doctrine of absolute judicial immunity, Dawn cannot pursue any claim that is premised on a theory that Conahan and Ciavarella did not act as impartial judges, failed to advise juveniles of their right to counsel or failed to determine whether guilty pleas were knowing and voluntary. But Caputo also found that "many of the actions taken by Conahan were not of a judicial nature."
The alleged agreements entered into by Conahan with Mericle and Powell, as well as any budget decisions make by Conahan as president judge, or any advocacy for building a new detention center are "non-judicial acts that are not subject to absolute judicial immunity," Caputo wrote.
Likewise, Caputo found that "some of Ciavarella's alleged actions are covered by judicial immunity, while others are not."
Ciavarella's courtroom actions in sentencing juveniles, including his sentencing of Dawn, are protected by judicial immunity, Caputo found.
"As for to the other allegations," Caputo wrote, "such as Ciavarella's role in the conspiracy to build the juvenile detention centers and receive kickbacks, those allegations are extra-judicial activity that is not protected by absolute judicial immunity."
Dawn's lawyer, Timothy R. Hough of Jaffe & Hough in Philadelphia, could not be reached for comment. Brulo's lawyer, Scott D. McCarroll of Thomas Thomas & Hafer in Harrisburg, also could not be reached.
