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A New York lawyer’s suit alleging racial motives in his removal from the list of 18-B attorneys has been restored by a federal appeals court. The 2nd U.S. Circuit Court of Appeals overturned a finding by a lower court judge that members of the screening committee were performing judicial acts and thus were immune from suits. In an opinion by Judge Amalya Kearse, Mitchell v. Fishbein, 03-7454, the circuit reinstated the suit of attorney Stephen Mitchell, who is black, under 42 U.S.C. ��1981 and 1983. The defendants are Harvey Fishbein, chairman, and other members of the screening committee for the 1st Department’s Supreme Court Panel of the Assigned Counsel Plan. Mitchell is a former Manhattan prosecutor and was on the Brooklyn 18-B panel from 1991 to 1995. Beginning in 1995, he was a member of the Manhattan panel. When Mitchell applied for re-certification in the 1st Department, he complained in an interview with the screening committee that the plan was infected with racism and that “many white assigned counsel attorneys were not providing zealous advocacy for their African-American and Latin clients.” He said the white attorneys “were more interested in churning cases in order to increase their fees … than [in] putting forth a serious effort to represent their clients effectively.” Mitchell claimed that those in charge of the plan “deliberately suppressed the number of African-American attorneys who were eligible to try homicide cases.” The screening committee declined to recertify what he called a disproportionate number of black lawyers, he said. The 1st Department committee notified Mitchell on March 18, 1998, that it was denying his application and terminating his appointment to the panel. Lawyers on the panel, a backup to the Legal Aid Society, are appointed to represent indigent defendants. They are paid $75 an hour for felony cases. Mitchell sued in 2001 seeking reinstatement, money damages and a judgment declaring that the refusal to recertify him violated his constitutional rights. Southern District Judge John Koeltl granted the state’s motion to dismiss. Rejecting the claim for monetary damages, the judge said in August 2002 that Fishbein and his co-defendants were absolutely immune from suit because, in deciding whether to recertify Mitchell, they “were performing a function closely associated with the judicial process.” The committee, he said, had acted “under rules adopted by, and issued under the authority of,” the justices of the Appellate Division, 1st Department, and the function the committee performed “forms an integral part of the process of appointing counsel for indigent defendants,” which is also a judicial act. Judge Koeltl also ruled that Mitchell could not bring a �1983 action for injunctive relief against judicial officers. Finally, concerns about federalism and comity expressed in the Rooker-Feldman doctrine barred him from considering Mitchell’s claims for declaratory relief because it would mean second guessing a state administrative body that had already ruled on the matter, the judge said. The Rooker-Feldman doctrine bars federal courts from hearing challenges to state court judgments and claims that are “inextricably intertwined” with them. ADMINISTRATIVE FUNCTION Writing for the 2nd Circuit, Judge Kearse said the “Rooker-Feldman doctrine is not applicable and that the State defendants were not entitled to absolute immunity.” “The mere fact that agency officials were appointed by a state court … does not mean the agency acts as a court,” she wrote. “The Rooker-Feldman doctrine bars federal district court review only of state-court decisions that are judicial in ‘nature and effect.’ It does not bar such review of an agency or committee decision that is in effect legislative or administrative. … “In the present case, we conclude that the Rooker-Feldman doctrine is inapplicable both because the Screening Committee, in compiling a list of qualified attorneys, acts as an administrative body, rather than conducting proceedings that are judicial, and because its denial of Mitchell’s application for re-certification to the 18-B Panel was a decision that was not judicial but legislative.” On the issue of immunity for the screening panel members, Judge Kearse said that “a private actor may be afforded the absolute immunity ordinarily accorded judges acting within the scope of their jurisdictions if his role is ‘functionally comparable’ to that of a judge … or if the private actor’s acts are integrally related to an ongoing judicial proceeding … “We cannot see that the State Defendants fit into either category,” she wrote. Judges James L. Oakes and Jose A. Cabranes joined in the opinion. Mitchell appeared pro se. Assistant Solicitor General Robert H. Easton and Deputy Solicitor General Michelle Aronowitz represented New York State.

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