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A lawyer who was convicted of malicious loitering but later cleared by an appellate court cannot sue the trial judge for violation of his civil rights — even if the trial judge met with a witness outside the trial and questioned him on his own — because such an act does not pierce the absolute immunity judges enjoy, a federal appeals court has ruled. In Serra v. Salus, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals upheld a decision by U.S. District Judge Stewart Dalzell that dismissed attorney Marc D. Serra’s lawsuit in its entirety. Dalzell, in a December 2000 opinion, 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 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. Serra, a New Jersey lawyer who is also admitted to the Pennsylvania bar, was arrested on the campus of Bryn Mawr College in the early morning of October 3, 1991, on charges of defiant trespass, disorderly conduct and malicious loitering. According to court papers, the Lower Merion 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 two remaining charges. In August 1992, Salus conducted a one-day bench trial. But after the close of testimony, Serra claimed, 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 earlier that day. The next morning, on September 1, 1992, Salus found Serra guilty of the malicious-loitering charge only. Serra was sentenced to one year of probation and 40 hours of community service and was fined $500. But Serra appealed, and, in February 1994, the Pennsylvania Superior Court vacated the judgment on the ground of insufficient evidence to support a verdict of malicious loitering. Serra then filed a civil suit in Montgomery County, alleging malicious prosecution by Bryn Mawr and the student who made the initial complaint. The conviction, Serra said, resulted in his being fired from his law firm and effectively losing his legal career in Philadelphia. He claimed 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, Pa., police did not participate in the decision to prosecute him; that the college’s public safety department was under “severe criticism” from students at the time of his arrest for its alleged inability to respond to numerous, serious incidents on campus; and that Heath, the director of public safety (and the same man who met with Salus), had been particularly criticized. Serra claimed that he was never able to take depositions from either Heath or 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 lawyer, filed a federal civil rights suit against the college, Salus, Bortner, Montgomery County and five court workers. Dalzell has dismissed Serra’s suit, granting dismissal motions from all the defendants. Now the 3rd Circuit has upheld Dalzell’s decision, finding that Salus was entitled to absolute judicial immunity. In an unsigned per curiam opinion, Circuit Judges Maryanne Trump Barry, Leonard I. Garth and Robert E. Cowen said the U.S. Supreme Court had held that allegations of ex parte proceedings are not enough to show that a judge was not acting within his lawful jurisdiction. The 9th Circuit has gone even further, the panel said, by holding that even an alleged conspiracy between a judge and a prosecutor to predetermine the outcome of a case is “clearly improper” but “does not pierce the immunity extended to judges and prosecutors.” The logic of the 9th Circuit’s decision in Ashelman v. Pope is also fatal to Serra’s claims against Salus, the 3rd Circuit panel said, because “if such a conspiracy does not pierce judicial immunity, neither do the acts alleged by Serra.”

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