Absolute Judicial Immunity Makes Absolutely No Sense: An Argument for an Exception to Judicial Immunity
Volume 84, No. 4, Summer 2012
By Timothy M. Stengel

With utter disdain for the rule of law, defendants Mark A. Ciavarella, Jr. and Michael T. Conahan, in combination and conspiracy with other[s] . . . , have collectively perpetrated, through their acts and omissions, what ranks as one of the largest and most serious violations of children’s rights in the history of the American legal system. . . . In choosing to treat children as commodities that could be traded for cash, the defendants have placed an indelible stain on the Luzerne County juvenile justice system.

These were a few of the opening lines of a class action law suit filed by the Juvenile Law Center (JLC)—a public interest law group from Philadelphia—on behalf of dozens of children following the recent “Kids-for-Cash” scandal in Pennsylvania state court. That scandal and the legal measures that followed provide the factual background for this Comment.

In January 2009, the U.S. Attorney’s Office for the Middle District of Pennsylvania filed a criminal information in federal court. That information charged two Luzerne County, Pennsylvania judges with depriving the citizens of Pennsylvania of their honest services and conspiring to defraud the United States government. The root of these charges was more than $2,600,000 of secret income from a series of deals with the developers of a privately run, for-profit juvenile detention center. The judges allegedly received that income in exchange for their official acts, which included placing juvenile offenders in the detention center, as well as procuring state funding to house those juveniles.

Filed on the same day as that information were two plea deals—one for each judge—waiving an indictment by grand jury and pleading guilty to honest services wire fraud and conspiracy to commit tax fraud. Those plea deals, however, were rejected by Judge Edwin M. Kosik of the Middle District of Pennsylvania due to Judge Kosik’s assessment that Judges Conahan and Ciavarella had not accepted responsibility for their conduct. Judge Kosik gave the two judges the option to either withdraw their guilty pleas or possibly face harsher punishment than was contemplated by their plea agreements. Both judges withdrew their pleas and a grand jury indictment followed.

The grand jury indictment included forty-eight counts. In addition to the charges levied in the information, the indictment included racketeering, bribery, money laundering, and extortion charges. The description of their misdeeds was also expanded. Perhaps the most egregious charge against the two judges was that they had not only guaranteed placement of guilty juveniles in the private detention center but that they were also actively funneling juveniles into that detention center, regardless if their “crimes” warranted such sentences. The detention center, in turn, received a steady stream of funding from the state, the cost of housing these juvenile offenders. In the wake of the grand jury indictment, Michael Conahan pled guilty and was sentenced to 17.5 years in prison. Mark Ciavarella was convicted on twelve counts and was sentenced to twenty-eight years in prison. Both judges were ordered to pay restitution.

The indictment was not the first time this gross abuse of power had been alleged. Even before the initial charges, the JLC had asked the Pennsylvania Supreme Court to exercise its King’s Bench jurisdiction and look into possible irregularities in Judge Ciavarella’s courtroom. Although the Pennsylvania Supreme Court initially denied the request of the JLC, the criminal charges elevated the allegations to a point where the court determined the matter was worth another look. As such, the court appointed a Special Master to investigate the allegations. The Special Master’s investigation established that the corruption in Judge Ciavarella’s courtroom was so pervasive that it could not be said with any certainty that any juvenile appearing before Judge Ciavarella received a fair proceeding. Following the recommendations of the Special Master, the Pennsylvania Supreme Court took the extraordinary step of expunging the records of all juveniles appearing before Judge Ciavarella during the time in question.

The Commonwealth of Pennsylvania has undergone extensive self-reflection in order to determine if such abuses were happening elsewhere and to institute reforms to prevent similar abuses from happening again. One example is the Interbranch Commission on Juvenile Justice (“Interbranch Commission”), an investigatory body comprised of representatives of all three branches of state government. The Interbranch Commission published an extensive account of what transpired in Luzerne County and made suggestions for what should change. Curiously, though, none of those recommendations included measures to compensate the juvenile victims.

Although the extraordinary step of expunging five years worth of juvenile records goes far toward rectifying the harm done to those children unlucky enough to have become mired in the Kids-for-Cash scandal, it is impossible to say those juvenile victims have been made entirely whole. Following the initial charges by the U.S. Attorney, several class action lawsuits were filed, seeking damages against several of the scandal’s key parties, including Judges Conahan and Ciavarella. Unfortunately, the doctrine of absolute judicial immunity created a hurdle.

It is well settled that a judge enjoys absolute judicial immunity from a civil suit when (1) that judge has acted within her subject matter jurisdiction and (2) the act in question is a judicial act. Although judicial immunity has been narrowed by a litany of cases defining a “judicial act,” the Kids-for-Cash scandal presents a scenario in which an act that falls squarely within the definition of a judicial act has been admitted by at least one of the parties involved and proven beyond a reasonable doubt in a separate criminal proceeding to have been corruptly influenced.

Case law from the United States Supreme Court, which adopted the English common law rule and then, over time, refined it to the established American legal principle it is today, has never had to answer the question of how immunity jurisprudence should react to more than mere allegations of corruption. When faced with the decision in the consolidated class action law suit, Wallace v. Powell, federal district Judge A. Richard Caputo granted immunity to Judges Conahan and Ciavarella for all courtroom activities. Although Judge Caputo most likely interpreted the question of judicial immunity in a way most faithful to the case law, and although the parties named in Wallace may still be held liable for harm caused by nonjudicial acts, this Comment seeks to determine whether the law should change by answering the following question: Should there be an exception to absolute judicial immunity?

Part II of this Comment discusses the evolution of the doctrine of absolute judicial immunity in the United States, as well as the reasons for and the arguments against the doctrine. Part III discusses critically the reasons behind judicial immunity as presented in the case law and attempts to show that when those reasons are sacrificed, judicial immunity makes little sense. Part III also proposes a test for when a judge should lose her immunity; that is, judicial immunity should be placed in doubt upon the filing of criminal charges and should cease where a court determines the reasons for judicial immunity are no longer present.

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