MEMORANDUM DECISION AND ORDER GRANTING MOTIONS TO QUASH SUBPOENAS
THIS PROCEEDING came on for consideration on the following motions to quash the three subpoenas (“Subpoenas”), which were caused to be issued on or about December 23, 2003, by one of the defendants, Robert Daniels a/k/a Robert Dizak (“Daniels”), to three individuals— Sean Concannon, Yvonne Shepherd, and Cheryl Thompson — requiring them to appear at depositions: (1) Motion to Quash Subpoena and for Sanctions (Doc. No. 245) filed by Sean Concannon; and (2) Emergency Motion of Bankruptcy Court Employees, Yvonne Shepherd and Cheryl Thompson, to Quash Deposition Subpoenas Issued by Robert Daniels, and for Protective Order, on in the Alternative, Motion for Order Requiring Defendant Daniels to Show Cause Why Subpoenas Should not be Quashed (Doc. No. 246) (collectively, “Motions to Quash”). Mr. Daniels filed an Opposition to Mr. Concannon’s Motion to Quash (Doc. No. 250). Since the depositions were scheduled for January 16, 2004, this Court entered an Order on January 13, 2004 (Doc. No. 251), temporarily quashing the Subpoenas pending resolution of the Motions to Quash, as well as allowing any interested party to respond by January 23, 2004. Subsequently, on January 20, 2004, Daniels filed his Opposition to Thompson’s and Shepherd’s Motion to Quash (Doc. No. 254) (“Response”).
Factual Background
As numerous decisions have been reported detailing the lengthy history of this ease and adversary proceeding, only a brief recitation of the relevant facts is
During the course of this proceeding, the defendants had attempted, without success, to have former Bankruptcy Judge C. Timothy Corcoran, III recused from this case.
In re Lickman,
Daniels’ main reason for deposing Thompson and Shepherd is ostensibly to determine if Concannon visited Judge Cor-coran’s chambers, “assisted” in writing the decisions and made ex parte calls to chambers. See Response, ¶¶ 6 to 12.
The Motions to Quash present two principal legal issues. First, there is the issue of whether a judicial assistant and a law clerk of a United States Bankruptcy Judge are immune or otherwise protected from compulsory civil process purporting to require their appearance and testimony about their official activities, including their knowledge, if any, of the decision making process of the bankruptcy judge for whom they worked.
The second issue to be decided is whether the “Divestiture Rule” precludes the enforcement or issuance of the Subpoenas as this proceeding is under appeal. For the foregoing reasons, the Court finds on both grounds that the Motions should be granted and the Subpoenas quashed.
A. Judicial and Quasi-Judicial Immunity.
Judicial and quasi-judicial immunity governs the first issue. Judge Corcoran was a judicial officer duly appointed as a United States Bankruptcy Judge for the judicial branch of the government. It is well settled that judges are absolutely immune from civil liability for their “judicial acts.”
Wahl v. McIver,
for benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences .... His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Oliva v. Heller,839 F.2d 37 , 39 (2d Cir.1988) (quoting Pierson v. Ray,386 U.S. 547 , 554,87 S.Ct. 1213 ,18 L.Ed.2d 288 (1967)).
Here, Daniels is complaining of decisions rendered by Judge Corcoran and wants to depose his staff and the Trustee’s attorney to determine if there was any impropriety surrounding Judge Corcoran’s decisions in this case. Clearly, Judge Corcoran was a sitting judge when he rendered his decision. 3 There can be no real dispute that the rendering of his decision was also clearly a “judicial act.” 4
Daniels argues that judicial immunity is irrelevant in discovery. Assuming arguendo that a suit against Judge Corcoran had not been filed, it is still clear that Daniels’ defense in his appeal is based on judicial misconduct. The policy behind immunity does not merely extend to suits, it also extends to protection against discovery. If judicial immunity were applicable, then it would be senseless and disruptive to allow for discovery. The Supreme Court has spoken clearly in this area. Until immunity is resolved, discovery shall not be allowed because “inquiries of this kind can be peculiarly disruptive of effective government.”
Harlow v. Fitzgerald,
The next issue to be resolved is whether immunity should be extended as to Ms. Shepherd, a judicial assistant to a federal judge. Factors to be considered when utilizing the functional approach “include the nature of the act taken, namely whether it is a function normally performed by a judge, and the expectations of the parties, namely whether they dealt with the judge in his judicial capacity.”
Fariello,
As summarized by the Court of Appeals of Maryland in Gill, with respect to court clerks, courts have used differing analyses but have nonetheless extended immunity to them:
Some courts have accorded judicial immunity only with discretionary, as opposed to ministerial acts or when the act is required by court order or taken at a judge’s direction.... Other courts have looked more at whether the conduct was an integral part of the judicial process, rather than whether it was discretionary or ministerial in nature.... Even under the more restrictive approach, judicial immunity has been applied to court clerks with respect to discretional acts that implement judicial decisions or that are performed at the discretion or supervision of a judge.” Gill,724 A.2d at 97 (internal citations omitted).
Ms. Shepherd is a judicial assistant. The “Chambers Handbook for Judges’ Law Clerk and Secretaries,” Federal Judicial Center (1994), at 1, states that “secretaries assist in the day-to-day conduct of court business.” A judicial assistant is often just as privy as a law clerk to a judge’s decision, in that she or he may have a hand in the editing and typing of a decision. A secretary or judicial assistant to a judge is an integral part of chambers and the judge is the sole and direct supervisor of his or her work. It is the expectation of any judge or party that such a close employee of his staff be also clothed with the same immunity with respect to any judicial acts.
From a policy perspective, the public will be better served to extend immunity to judicial assistants. Litigants who are dissatisfied with a judge’s decisions should not be allowed to circumvent the absolute immunity provided to judges by forcing his or her staff to testify as to the judge’s decision making process. Under any standard cited above, this Court can find no principled basis upon which to distinguish the role of a judicial assistant or secretary from that of “court clerks who act under the control and supervision of judges and who perform functions that are integral to the judicial process.”
Gill,
Accordingly, the Subpoenas as issued to Ms. Thompson and Ms. Shepherd should be quashed as they are clothed with absolute immunity. Additionally, it is appropriate to issue a protective order against
B. The Divestiture Rule Requires That the Subpoenas be Quashed.
In the alternative, even if judicial immunity were not applicable, this Court is also under an obligation to quash the Subpoenas pursuant to the “Divesture Rule.” The Divestiture Rule states that a “[f]iling of a notice of appeal confers jurisdiction on the appellate court and divests the trial court over those aspects of the case involved in the appeal.”
In re Winimo Realty Corp.,
In this adversary proceeding, the final judgment is under appeal before the district court. The Subpoenas, which were caused to be issued by Daniels, cannot be considered by any stretch of the imagination as an action to implement and enforce the judgment rendered against him and other defendants. In contrast, the Subpoenas would very likely interfere with the appeal process. By seeking to depose the parties, an inference can be drawn that Daniels is attempting to impermissibly add to the record on appeal. 5 Therefore, this Court concludes that it lacked jurisdiction to issue the Subpoenas and accordingly, they should be quashed.
For the reasons recited above, it is
ORDERED:
2. Ms. Shepherd’s and Ms. Thompson’s Joint Motion for a protective order is granted.
3. The Court will retain jurisdiction to consider imposing sanctions as well as awarding fees and costs in the event that Daniels attempts to re-issue the Subpoenas.
Notes
.
In re Lickman,
. Even prior to their actions to have Judge Corcoran recused, there has been a pattern of attempts to make other judges recuse themselves from presiding over this case. See, e.g., Docket No. 83 in the main case. In fact, Daniels admits that this is his modus operan-di. In his Response, ¶ 13, he makes the similar threat to this judge:
Should this Court decide to quash these subpoenas, I believe it will then be my obligation to immediately bring such egregious action to the 11th Circuit, as to how this Judge suppressed a valid inquiry into unethical and possible criminal conduct. And by the way, your friend "Judge Tim” whose improper conduct you could not uphold fast enough while intentionally ignoring defendants evidence, was not the first judge in which I played a significant role in having removed from the bench — and I rather doubt he will be the last.
. Daniels asserts incorrectly that judicial immunity is lost when a judge is no longer sitting in his official capacity as a judge. Judicial immunity is still accorded a former sitting judge if the complaints against him arise from the judicial acts taken when he was a judge.
Sparks v. Duval County Ranch Co., Inc.,
. Whether an act by a judge is a "judicial” one depends on "whether it is a function normally performed by a judge,” and "the expectation of the parties” and "whether they dealt with the judge in his judicial capacity.”
Stump v. Sparkman,
. The Motions to Quash also raise the defense of the “vexious” nature of the Subpoenas. While the Court's rulings on alternative grounds make it unnecessary to rule on this issue, the Court notes that given the historical and factual background of this case, these circumstances support the argument that these subpoenas were issued to "harass.” Rule 45(c)(3) of the Federal Rules of Civil Procedure (subpoenas may be quashed if it subjects a person to "undue burden”);
Bogosian v. Woloohojian Realty Corp.,