STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. v. ALLYSON CAMPBELL, ET AL.
No. 2018-C-1105 CONSOLIDATED WITH No. 2018-C-1115
Supreme Court of Louisiana
June 26, 2019
Parish of Ouachita. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA. Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Justice Clark, recused.
PER CURIAM:
For the reasons assigned, the judgment of the court of appeal is reversed insofar as it dismisses plaintiff’s claims against the defendant judges with prejudice. The exception of no cause of action filed by these defendants is hereby denied. In all other respects, the judgment of the court of appeal is affirmed. The case is remanded to the district court for further proceedings.
REVERSED IN PART AND REMANDED.
JOHNSON, C.J., concurs in part and dissents in part and assigns reasons.
WEIMER, J., concurs and assigns reasons.
GUIDRY, J., dissents and assigns reasons.
CRICHTON, J., dissents and assigns reasons.
KIRBY, J., concurs and assigns reasons.
STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. VERSUS ALLYSON CAMPBELL, ET AL.
No. 2018-C-1105 CONSOLIDATED WITH No. 2018-C-1115
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT
PER CURIAM*
Plaintiffs filed the instant suit against certain judges of the Fourth Judicial District Court as well as a law clerk employed by that court. Essentially, plaintiffs allege the law clerk “spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly ‘handled’ court documents” in earlier litigation involving plaintiffs, and that the judges either aided or concealed these actions. The judges and law clerk filed motions to strike certain allegations from plaintiff’s petition and also filed exceptions of no cause of action. The district court granted the motions to strike and granted the exceptions of no cause of action. On appeal, a divided en banc panel of the court of appeal reversed the motions to strike in part. The court also reversed the granting of the exception of no cause of action as to the law clerk, but affirmed the granting of the exception of no cause of action as to the judges, finding they were entitled to absolute judicial immunity. Palowsky v. Campbell, 2016-1221 (La. App. 1 Cir. 4/11/18), 249 So.3d 945. We granted and consolidated applications for certiorari filed by the law clerk and judges. Palowsky v. Campbell, 2018-1105 c/w 2018-C-1115 (La. 12/3/18), ___ So.3d ___.
Considering the highly unusual and specific facts of this case, the court of appeal erred in finding the judges were entitled to absolute judicial immunity. Accepting the facts as alleged in the petition as true for purposes of the exception of no cause of action, we find plaintiff’s allegations regarding the judges’ supervision and investigation of the law clerk’s activities arise in the context of the judges’ administrative functions, rather than in the course of their judicial or adjudicative capacities. In Forrester v. White, 484 U.S. 219, 229 (1988), the United States Supreme Court held that a
In reaching this conclusion, we emphasize that we express no opinion on whether plaintiff can prove these allegations. Moreover, our opinion today should not be read as undermining or eroding the strong principles of absolute judicial immunity which are firmly established in our jurisprudence. Rather, we merely hold that under the narrow and specific parameters of plaintiff’s petition, plaintiff has alleged sufficient facts to state a cause of action against the judges.
Accordingly, we reverse the judgment of the court of appeal insofar as it dismissed plaintiff’s claims against the judges with prejudice. In all other respects, we find no error in the court of appeal’s judgment and therefore affirm the remaining portions of that judgment.
DECREE
For the reasons assigned, the judgment of the court of appeal is reversed insofar as it dismisses plaintiff’s claims against the defendant judges with prejudice. The exception of no cause of action filed by these defendants is hereby denied. In all other respects, the judgment of the court of appeal is affirmed. The case is remanded to the district court for further proceedings.
STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. VERSUS ALLYSON CAMPBELL, ET AL.
No. 2018-C-1105 CONSOLIDATED WITH No. 2018-C-1115
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA
JOHNSON, Chief Justice, concurs in part, dissents in part, and assigns reasons.
While I agree with the majority that the law clerk employee is not entitled to immunity, I respectfully dissent on the issue of judicial immunity. A judge has immunity from civil liability when sued for actions taken pursuant to his or her judicial authority. While this immunity is not absolute since our jurisprudence recognizes that a judge is not immune from liability for non-judicial acts, namely the administrative acts needed to operate a court, the allegations against these judges are properly classified as acts done in their judicial capacities. As such, I find the judges are not subject to civil liability for their actions, but the plaintiff would have recourse to seek review of the judges’ actions in the underlying case from the court of appeal and this court, or by filing a complaint with the Judiciary Commission regarding the judges’ actions.
STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. VERSUS ALLYSON CAMPBELL, ET AL.
NO. 2018-C-1105 CONSOLIDATED WITH NO. 2018-C-1115
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA
WEIMER, J., concurring.
I concur with the majority’s finding that neither the law clerk nor the judges at her court are immune from this lawsuit alleging the law clerk purposely destroyed and hid documents relevant to the plaintiff’s prior litigation. I write separately because I find that a requirement in earlier cases for a plaintiff to plead “malice or corruption” no longer has a place in the law of judicial immunity. Instead of requiring a plaintiff to enter the murky realm of ascertaining and pleading a judge’s motivation, the jurisprudence has evolved such that the function of the judge’s behavior is the touchstone for immunity. If the challenged behavior stems from a judicial function, the judge is immune from suit. If the challenged behavior is outside a judicial function, immunity does not apply.
Judicial immunity has long been a jurisprudential construct in Louisiana. This
While the jurisprudential doctrine of judicial immunity in Louisiana initially drew solely from our state’s cases (see, e.g. Berry, 102 So. at 79-81 (collecting cases)), by the time Moore was decided, it was recognized that “[t]he Louisiana jurisprudence on judicial immunity mirrors the federal doctrine.” Moore, 541 So.2d at 381. Nearly contemporaneous with Moore, the U.S. Supreme Court in Forrester v. White, 484 U.S. 219, 228-29 (1988), ruled that administrative decisions are outside the scope of judicial immunity. Furthermore, shortly after Moore, the United States Supreme Court grappled again with the extent of judicial immunity. See Mireles v. Waco, 502 U.S. 9 (1991).
In Mireles, the Court examined the significance of “bad faith or malice“, which is phraseology substantially the same as the requirement that had evolved in Louisiana cases to prove a judge had acted with “malice or corruption.” See Moore, 541 So.2d at 381. The Mireles Court ruled that “judicial immunity is not overcome by allegations of bad faith or malice.” Mireles, 502 U.S. at 11. The Court explained that “the existence of” bad faith or malice “ordinarily cannot be resolved without engaging in discovery and eventual trial.” Id. The Supreme Court recognized that avoiding the necessity for judges to explain their actions and decisions in discovery in all but the most narrow set of cases is a major purpose of judicial immunity. See Id. at 11 (“Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages.“). Our own jurisprudence contains a similar recognition of the importance of freeing judges from litigation, as long ago this court ruled: “On the highest grounds of necessity and public policy judges cannot be held liable for acts done by them in their judicial capacity” and this court logically connected judges with other “executive officers of the court” who “cannot be sued for acts which they do in obedience to the orders of the court appointing them.” Killeen v. Boland, Gschwind Co., 102 So. 672, 675 (La. 1924) (on reh’g).
Again recalling in modern times that our state courts have taken cues from the federal jurisprudence, I believe the time has arrived to put to words what the majority of this court now tacitly recognizes from this case: requiring a plaintiff to plead “malice or corruption” to overcome judicial immunity is an archaic requirement inconsistent with the goals of judicial immunity. Instead of requiring a plaintiff to enter the murky realm of pleading and later embarking on extensive discovery to prove a judge’s motivation, the jurisprudence has evolved such that the function of–not the motivation for–a judge’s behavior has become the touchstone for immunity. See Forrester, 484 U.S. at 227 (“immunity is justified and defined by the functions it protects and serves.“). On one hand, the jurisprudence dictates that if the
The Supreme Court has developed a two-factor test for determining whether an act relates to a judicial function. “[T]he factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978).
The allegations here are most unusual; therefore, these factors should be regarded as guideposts to assist in analysis. I find the district court’s striking from Mr. Palowsky’s petition various allegations relating to payroll fraud by the law clerk to be consistent with the Stump guideposts. A cause of action in favor of Mr. Palowsky for payroll fraud is simply non-existent; Mr. Palowsky alleges no harm came to him personally from the alleged payroll fraud. A cause of action for the provisions of his petition that have not been struck is extremely limited, if it exists at all. The allegations that the clerk thwarted Mr. Palowsky’s litigation by sabotaging the presentation of pleadings to judges are allegations that narrowly avoid immunity, in my view, as being outside a judicial function. Indeed, there is much to commend in my learned colleague’s dissent, which finds the connection between the clerk’s alleged misdeeds and injury to Mr. Palowsky’s other litigation is a connection that justifies judicial immunity. However, I find the allegations of misdeeds to be such that accepting them as true, as we must for present purposes, the clerk essentially severed a connection between herself and a judicial function. The alleged destruction and concealment of documents essentially would have precluded judicial work. If a court is a metaphorical temple of justice, the allegations here are essentially that the clerk’s alleged destruction and concealment of documents closed the door to one litigant, allowing only the prayers of the other litigant to reach the decision makers inside.
While the Stump guideposts are placed such that another case involving a law clerk could certainly be decided differently, the allegations here that the law clerk essentially precluded the trial court from engaging in some of its most basic judicial functions, like evaluating pleadings, are such that do not justify judicial immunity.
For similar reasons, I find that the district court judges are not immune from certain allegations outside their judicial function. Specifically, as identified by one of my learned colleagues on the appellate court, “the alleged failure to ‘supervise’ [the law clerk] in this context is more akin to an administrative responsibility.” Palowsky v. Campbell, 16-1221, p. 2 (La.App. 1 Cir. 4/11/18), 249 So.3d 945, 984 (Crain, J., agreeing in part and dissenting in part). Also, and with the caveat that all allegations must be accepted as true for purposes of evaluating an exception of no cause of action, the petition contains allegations that the judges essentially conspired to cover up the law clerk’s destruction of public records, which facilitated the records not being considered. These allegations “arguably satisfy the essential elements of a crime, namely injuring public records, then concealing it.” See
To my learned colleague’s observations, I add the following. Daily, judges, often assisted by law clerks, address issues from litigants who perceive they have been wronged, have actually been wronged, have been accused of wrongs, or have actually committed wrongs. The judicial system tasks judges, often aided by law clerks, with resolving these matters and making the right decisions. This goal is often elusive, given the many competing considerations that must be balanced on the scales of justice. In order to function, the judicial system must shield judges and law clerks from being targeted with monetary liability for their actions within their judicial duties by those who are dissatisfied with a decision. See Forrester, 484 U.S. at 225 (citing Bradley v. Fisher, 13 Wall. 335, 348 (1872)) (“judicial immunity ... protect[s] judicial independence by insulating judges from vexatious actions prosecuted by disgruntled litigants.“). While monetary liability is excluded for the exercise of judicial functions, the judicial system provides litigants other safeguards, such as appellate review for what may be regarded as errors or “mistakes,” or a referral to the disciplinary systems for judges and attorneys who commit misconduct. See Forrester, 484 U.S. at 227; see also
Consistent with these principles, I would find that the plaintiff has pleaded a cause of action against the judges with particularity. Just as fraud must be pleaded with particularity “for ... exceptional cases where the full circumstances are needed to afford adequate notice to the opposing litigant,” (Revision Comment to
It must be well-noted that the allegations in this case are just that, allegations. By law, no evidence may be introduced when evaluating an exception of no cause of action. See
STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. VERSUS ALLYSON CAMPBELL, ET AL.
No. 2018-C-1105 CONSOLIDATED WITH No. 2018-C-1115
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA
Guidry, J., dissents and assigns reasons.
I respectfully dissent from the court’s per curiam opinion holding that the alleged
BACKGROUND
Plaintiff, Stanley Palowsky, is also the plaintiff in a separate case pending before the Fourth Judicial District Court, Palowsky v. Cork, No. 13-2059 (“Cork“), in which Mr. Palowsky is suing his business partner.1 Palowsky’s present lawsuit asserts claims for damages as a result of Fourth Judicial District Court law clerk Allyson Campbell’s alleged destruction of documents in the Cork case. The original petition alleged that Campbell:
maliciously and intentionally harmed Palowsky and willfully violated his constitutionally protected rights to both due process and access to courts [when] she spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly ‘handled’ court documents such as memoranda of law, orders, pleadings, sealed court documents, and chamber copies of pleadings filed with the clerk and hand-delivered to the judge’s office.
Palowsky further alleged Campbell “maliciously withheld and concealed documents and pleadings in the trial court as well as from the record that was sent to the Second Circuit Court of Appeal” and that her actions amount to fraud, abuse of process, and a violation of
In a supplemental and amended petition, Palowsky named as additional defendants Chief Judge H. Stephens Winters and Judges Carl Sharp, Benjamin Jones, J. Wilson Rambo, and Frederic Amman, asserting that the judges were involved in an investigation into a criminal complaint against the Court for payroll fraud involving Campbell. The amended petition states that “Defendant Judges all owe an administrative duty to properly audit, investigate, and report suspected payroll fraud;” that the judges “actively schemed to cover up same;” and that the judges failed to supervise the law clerk. Mr. Palowsky further alleged that Judges Amman, Sharp, and Rambo committed payroll fraud in certifying her timesheets and records for payroll and in covering up the scheme, and that they violated multiple Canons of the
Ms. Campbell and defendant judges filed separate exceptions of no cause of action. The trial court granted Ms. Campbell’s and the judges’ exceptions, agreeing that Mr. Palowsky’s claims for civil damages were barred by the doctrine of absolute judicial immunity.
Mr. Palowsky appealed. A majority of the First Circuit,3 en banc, upheld the trial court’s ruling as to the defendant judges but reversed the trial court’s ruling as to the law clerk, finding that she was not entitled to judicial immunity and overruling her exception of no cause of action.
Mr. Palowsky and Ms. Campbell filed writ applications in this court seeking review of the court of appeal’s ruling. This court granted both writ applications and heard oral argument to determine whether the doctrine of judicial immunity applies to bar Mr. Palowsky’s claims against Ms. Campbell and/or the defendant judges.
APPLICABLE LAW
Judicial Immunity
The United States Supreme Court consistently has recognized a judge’s absolute immunity from civil liability when he or she is sued for actions taken pursuant to his or her judicial power and authority. “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (citing Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)). Two exceptions exist when applying the doctrine of judicial immunity, however:
First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Forrester v. White, 484 U.S., at 227-229; Stump v. Sparkman, 435 U.S., at 360. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356-357; Bradley v. Fisher, 13 Wall., at 351.
Mireles v. Waco, 502 U.S. 9, 11-12 (1991). More succinctly, administrative decisions, even those necessary for the functioning of the court, have not been regarded as judicial acts. Forrester, 484 U.S. at 228.
On the other hand, when judicial acts performed within a judge’s jurisdiction are committed “with malice,” courts have granted immunity. The Supreme Court in Pierson stated:
This immunity applies even when the judge is accused of acting maliciously and corruptly, and it “is not for the protection or benefit of a malicious or corrupt judge, but for the 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.” [Citations omitted.]
386 U.S. at 554. See also Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991); Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir. 1989); Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982) (allegations of malice are insufficient to overcome qualified immunity).
Absolute immunity is not limited strictly to judges, however. “The concern for the integrity of the judicial process underlying the absolute immunity of judges also is reflected in the extension of absolute immunity to ‘certain others who perform functions closely associated with the judicial process.’ ” Oliva v. Heller, 839 F.2d 37, 39 (2nd Cir. 1988) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)). To determine who is covered by an extension of judicial immunity, the Supreme Court follows a functional approach, looking not to the title of the person performing the action but to the nature of the responsibilities being performed. Oliva, 839 F.2d at 39.
Courts have recognized absolute immunity on behalf of a law clerk when the law clerk’s actions are substantially intertwined with those of a judge who is acting in a judicial capacity and with proper jurisdiction. The Oliva court, affirming the district court’s finding of judicial immunity for both the law clerk and the judge, agreed that the duties of a law clerk are closely intertwined with the work of the judge:
[T]he work of judges’ law clerks is entirely [judicial in nature]. Law clerks are closely connected with the court’s decision-making process. Law clerks are “sounding boards for tentative opinions and legal researchers who seek the authorities that affect decisions. Clerks are privy to the judge’s thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be.” Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983). Moreover, the work done by law clerks is supervised, approved, and adopted by the judges who initially authorized it. A judicial opinion is not that of the law clerk, but of the judge. Law clerks are simply extensions of the judges at whose pleasure they serve.
Oliva, 839 F.2d at 40 (quoting Oliva v. Heller, 670 F.Supp. 523, 526 (S.D.N.Y. 1988)).
In Mitchell v. McBryde, 944 F.2d at 230, the Fifth Circuit Court of Appeals found absolute judicial immunity from a suit alleging a judge had maliciously conspired with his law clerk to set aside a default judgment that plaintiffs had obtained in a prior lawsuit. Citing Oliva, supra, the Mitchell court agreed that judicial immunity, as applied to the judge, extended to the
No Cause of Action and Standing
The peremptory exception of no cause of action is designed to test the legal sufficiency of a petition by determining whether a party is afforded a remedy in law based on the facts alleged in the pleading.
The sufficiency of a petition subject to an exception of no cause of action is a question of law. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. A de novo standard is applied to the review of legal questions, wherein this court renders a judgment based on the record without deference to the legal conclusions of the lower courts. Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353.
A trial or appellate court may raise issues of standing on its own motion.
ANALYSIS
Mr. Palowsky alleged that the law clerk “spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly ‘handled’ court documents” in the Cork litigation and that the judges covered up these actions. Although his petition includes additional allegations unrelated to Cork, Mr. Palowsky has standing in the present case only with regard to the allegations related to the Cork litigation. Stated differently, he has no standing to assert claims against these defendants for alleged payroll fraud, nor for any other claims separate from the Cork litigation, because he cannot demonstrate that he has a particular interest outside of the Cork litigation. “A plaintiff must have a real and actual interest in the action he asserts,
The claims against the law clerk and judges for which Mr. Palowsky has standing arise from his alleged damages sustained from their handling of the Cork litigation. The very allegations that he asserts against the law clerk—destruction of court filings—arise as a result of the judicial functions being performed in conjunction with that lawsuit. Mr. Palowsky’s additional allegations, such as payroll fraud, are concerns of the public at large but do not state a claim that is particular to Mr. Palowsky.
The majority’s determination that the law clerk’s actions in a case assigned to the law clerk’s judge are “administrative” ignores the broad scope of judicial immunity and creates a slippery slope by which courts will have to parse every action or inaction in the cases assigned to them to determine whether such action (or inaction) is judicial, administrative, or something else. “[T]he opening of any inroads weakening judicial immunity could have the gravest consequences to our system of justice.” McAlester v. Brown, 49 F.2d 1280, 1283 (5th Cir. 1972).
Similarly, to the extent Mr. Palowsky has standing to assert allegations that the judges failed to supervise the law clerk, the alleged lack of supervision falls within the judges’ judicial capacity. It is not necessary to determine whether the additional allegations of misconduct asserted against these defendants, but unrelated to Cork, are judicial or administrative, as Mr. Palowsky has no standing to pursue these claims.
Furthermore, I find the present facts distinguishable from the facts in Forrester, a case in which the U.S. Supreme Court held that a judge who allegedly demoted a probation officer on the basis of her sex was not entitled to judicial immunity, as the judge was acting in an administrative capacity rather than a judicial capacity. 484 U.S. at 229. In stark contrast to the employment claim asserted in Forrester, the claims for which Mr. Palowsky has standing are grounded in the defendants’ judicial functions.
My views regarding the broad scope of judicial immunity and its application to these facts in no way indicates that I wish to turn a blind eye to Mr. Palowsky’s allegations. Every litigant in any court of law is entitled to justice dispensed by a fair and impartial judiciary. If these defendants failed Mr. Palowsky in that regard, they may be subjected to other discipline, including potential criminal charges for destruction of public records. But I cannot say that the allegations for which Mr. Palowsky has standing, as ill-considered and distasteful as they may be, justify the erosion of judicial immunity, which has been recognized by state and federal courts for more than a century.
Accordingly, I would reverse the portion of the court of appeal’s decision that overruled Ms. Campbell’s exception of no cause of action based on judicial immunity and affirm the court of appeal’s ruling sustaining the judges’ exception of no cause of action. Under these facts, these defendants are absolutely immune from suit.
STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. VERSUS ALLYSON CAMPBELL, ET AL.
No. 2018-C-1105 CONSOLIDATED WITH No. 2018-C-1115
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA
Crichton, J., dissents and assigns reasons.
I agree with the majority’s conclusion that the alleged actions at issue are outrageous. However, in my view, the per curiam conflicts with the established principle of judicial immunity, which is based in over 150 years of federal and state jurisprudence and is foundational to the rule of law. It also risks eroding the independence of the judiciary and could adversely affect the public interest, including the paramount
I write separately from Justice Guidry solely to note that judicial immunity is absolutely not a “get out of jail free” card for any of the parties herein, nor should this dissent be construed to condone the disturbing allegations against the rogue law clerk and the judges. Proper application of the immunity doctrine here would immunize the clerk and judges only from civil liability, i.e., payment of monetary damages to the plaintiffs, and leaves open other remedies against them. In addition to losing her job, assuming, arguendo, that the relevant time limitations for prosecution have not elapsed, the law clerk’s actions may meet the elements of a violation of criminal law, the consequences of which could include a fine and/or imprisonment for a felony crime. See
STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. VERSUS ALLYSON CAMPBELL, ET AL.
No. 2018-C-1105 CONSOLIDATED WITH No. 2018-C-1115
SUPREME COURT OF LOUISIANA
06/26/19
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA
Kirby, J., ad hoc, concurs and assigns reasons.
I fully concur with the rationale and holding of the majority per curiam. As stated therein, at this stage of these proceedings, this result is required by the decision of the United States Supreme Court in Forrester v. White 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). In her opinion for a unanimous court, Justice O’Connor recognized the inherent difficulty in distinguishing between “truly judicial acts” entitled to immunity and those “that simply happen to have been done by judges” for which immunity is not appropriate. The vexation comes from the fact, also noted by Justice O’Connor, that the court has never precisely defined the acts entitled to judicial immunity, deferring instead to a “functional” analysis where the nature of the function performed, not the identity of the actor, governs the immunity analysis.
It is worth noting that Canon 3 of the Louisiana Code of Judicial Conduct, clearly recognizes the dichotomy between adjudicative and administrative duties. Specifically, Canon 3 (B) captioned ”Administrative Responsibilities” provides:
(1)A judge shall diligently discharge the judge‘s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, . . ..
(2)A judge shall require staff, court officials and others subject to the judge‘s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
(3)* * *
(4)A judge shall not make unnecessary appointments. A judge should exercise the power of appointment impartially and on the basis of merit. A judge should avoid appointments which tend to create the appearance of impropriety. A judge shall not approve the compensation of appointees beyond the fair value of services rendered . . ..
In my view the well pleaded facts of the petition at issue here merely present the reverse factual scenario confronting the Forrester, supra, court. There, a judge was sued for allegedly wrongfully discharging an employee. Here the gravamen of the complaint is that the defendants did not terminate an employee who was performing her duties improperly.1 Admittedly,
Insofar as the law clerk herself is concerned, she is only entitled to immunity when acting at the direction of a judge or pursuant to an established rule of court. Oliva v. Heller 839 Fed 2d 37 (2d Cir. 1988) only grants a law clerk immunity when assisting a judge with his judicial functions: “Accordingly, we hold that the defendant, who was clearly assisting the judge in carrying out judicial functions was covered by the doctrine of absolute immunity.” Oliva, supra, at 40. See also Johnson v. Parish of Jefferson, 2009 WL 1808718: “Court employees who act under the explicit instructions of a judge ‘acts as the arm of the judge and comes with [sic] his absolute immunity,’ even if the employees act ‘in bad faith or with malice.’ ” Williams v. Wood, 612 F.2d 982, 985 (5th Cir.1980). Mitchell v. McBryde, 944 F.2d 229, 230-31 (5th Cir.1991). [Emphasis added.] Likewise, Guccione v. Parish of Jefferson, 382 Fed.Appx. 357 (2010), 2010 WL 2465039 teaches:
The remaining defendants in this lawsuit are the employees of the Louisiana Fifth Circuit Court of Appeal who acted pursuant to the procedures allegedly implemented by the judges. The district court determined correctly that because they were only acting at the express direction of the judges, to assist them in carrying out their judicial functions, those defendants are likewise entitled to absolute judicial immunity with respect to Guccione’s claim for monetary damages. See Mitchell v. McBryde, 944 F.2d 229, 230–31 (5th Cir.1991).
A careful review of the pleadings reveals no allegation that the law clerk’s complained of actions were done pursuant to established court policy or at the direction of a judge in aid of judicial functions. Therefore, she is not entitled to immunity.