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A judge does not lose his judicial immunity from being hit with a civil rights suit even if he privately meets with a witness and questions him on his own, a federal judge has ruled. In his 20-page opinion in Serra v. Salus, U.S. District Judge Stewart Dalzell found that there are only two situations in which judges lose immunity — when they are performing a non-judicial act; or when they act “in the complete absence of all jurisdiction.” Dalzell found that even if Montgomery County, Pa., Judge Samuel D. Salus had questioned a witness ex parte, he did not lose his immunity because it was still a judicial act, and he clearly had jurisdiction over the criminal case. As a result, Dalzell dismissed all of the claims against Salus brought by Marc D. Serra, a New Jersey lawyer who said Salus violated his rights when he convicted him on charges of malicious loitering. Serra was arrested on the campus of Bryn Mawr College in Bryn Mawr, Pa., in the early morning hours of Oct. 3, 1991, for defiant trespass, disorderly conduct and malicious loitering. According to court papers, the Lower Merion, Pa., Township Police were responding to a complaint from a student who said that a man was looking in her dormitory window. The defiant trespass charge was dismissed at a preliminary hearing when Serra argued that Bryn Mawr College “is not off limits to the public.” But he faced trial for the remaining two charges. In August 1992, Judge Salus conducted a one-day bench trial. But after the close of testimony, Serra claims that Salus and his wife visited Bryn Mawr’s campus and met privately with Steven Heath, the director of public safety for the college, who had been a witness for the Commonwealth of Pennsylvania earlier that day. The next morning, on Sept. 1, 1992, Salus found Serra guilty on the malicious loitering charge only. Serra was sentenced to one year of probation, 40 hours of community service and a $500 fine. But Serra appealed and in February 1994, the Pennsylvania Superior Court vacated the judgment on grounds of insufficient evidence to support a verdict of malicious loitering. Serra then filed a civil suit in Montgomery County alleging malicious prosecution against Bryn Mawr and the student who made the initial complaint. He claims that he learned in discovery that the student who initially phoned Bryn Mawr’s public safety department never had the opportunity to identify him; that the Lower Merion Township police did not participate in the decision to prosecute him; that the college’s public safety department was under “severe criticism” from the student body at the time of his arrest for its inability to respond to numerous, serious incidents on campus; and that Heath, the director of public safety (and the same man who met with Judge Salus), had been particularly criticized. But Serra claims he was never able to take depositions of either Heath or Judge Salus and that his suit was dismissed by visiting Judge Oscar S. Bortner who simply adopted the college’s brief as his opinion — without even reading Serra’s brief. Serra appealed Bortner’s decision to the Superior Court, but also, acting as his own attorney, filed a federal civil rights suit against the college, Salus, Bortner, Montgomery County and five court workers. Now Dalzell has dismissed the entire suit, granting dismissal motions from all of the defendants. The college’s lawyer, Stephen R. Bishop of Kelly McLaughlin & Foster, argued that Serra was asking for a finding by the federal court that the college is liable for malicious prosecution. As a result, he said, his claims are “obviously entwined” with the state court suit for malicious prosecution and are therefore barred under the Rooker-Feldman doctrine. Dalzell agreed, saying the malicious prosecution claim is barred by issue preclusion because “this is the exact issue that the state court considered and ruled upon in granting Bryn Mawr’s motion for summary judgment.” As for Serra’s constitutional claims against the college, Dalzell found that they all revolve around alleged misconduct during the state court civil suit. “Were we to review that decision, we would effectually be sitting as an appellate court, which we are forbidden, under the Rooker-Feldman doctrine, from doing.” In his claims against Salus, Serra argued that the judge “became an unsworn witness” against him when he met privately with a prosecution witness. Afterward, he said, Salus engaged in a “conspiracy … to cover-up the substance of this meeting and the influences which were brought to bear upon him.” In visiting the Bryn Mawr campus, he argued, Salus “was not engaged in a judicial function at the time and can claim no immunity for his actions or subsequent actions in conspiracy with other defendants.” But Dalzell noted that Serra also alleged in his suit that Salus “was acting under the color of statutes, ordinances, regulations, customs and usages of the Commonwealth of Pennsylvania and his respective office as Judge of the Court of Common Pleas.” Dalzell found that even if Serra’s allegations were true, “the claimed ex parte nature of a contact does not by itself undermine a judge’s otherwise absolute immunity.” All of Salus’s alleged actions were taken in his judicial capacity, Dalzell found. “Whatever their propriety under the law, Judge Salus’s actions were not done in ‘complete absence of all jurisdiction.’ … Judge Salus without question had jurisdiction to hear Serra’s criminal and civil cases,” Dalzell wrote. Dalzell said it was not his role to decide whether Salus erred or exceeded his authority because “such questions are for the Pennsylvania appellate courts and one of those courts has already given Serra relief in his criminal case.” Judge Bortner, too, is entitled to immunity, Dalzell found, because “there is no doubt that Judge Bortner acted in his judicial capacity in ruling on Bryn Mawr’s summary judgment motion and had authority to rule on that motion.” Finally, Dalzell ruled that the claims against the county and its court workers also failed because any ruling against them would have to be predicated on a finding that the outcome of Serra’s civil suit was wrong. “Furthermore, assuming this conspiracy among the court personnel existed at all, it palpably failed,” Dalzell wrote. “Serra had the opportunity at the hearing before Judge Bortner to present his arguments. As to the prothonotary’s office’s alleged attempt to thwart Serra’s appeal, that, too, failed. Serra filed a timely appeal, and the Superior Court now has the trial record.” Serra, contacted at his Cedar Grove, N.J., office on Friday, said that he was disappointed by the decision and is considering an appeal. “I don’t believe that what Judge Salus did was within the normal functions of a judge,” he said. But when asked if Salus had acted in the absence of jurisdiction, Serra said that there is a “fine distinction” between instances in which a judge has no jurisdiction and those in which he oversteps his authority.

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