Presumably sometime in 2019 the Louisiana Supreme Court will decide whether a judge’s law clerk should be extended the same judicial immunity that jurists themselves enjoy in presiding over cases before the court.
The Supreme Court also will determine — presumably — whether judicial immunity, which historically shields a judge from being sued over his rulings in a case before his court, extends to every judge in a courthouse, even if a judge engages in questionable behavior to affect the outcome of a case that was not assigned to him.
The Supreme Court was handed this hot potato thanks to a lawsuit known as Stanley R. Palowsky III v. Allyson Campbell and others. The others in this affair are Fourth Judicial District Court judges Stephens Winters, Carl Sharp, Wilson Rambo, Fred Amman and Ben Jones. Sharp retired from the district court bench in 2018. Jones retired in 2014, but in 2015 he returned to the district court to serve as its administrator.
Palowsky sued Allyson Campbell, who is a law clerk at Fourth Judicial District Court, in July 2015, claiming she concealed or destroyed documents Palowsky had filed with the court in his lawsuit against his former business partner. About a week after Palowsky sued Campbell, he amended the lawsuit to name the judges as defendants as well. The judges, according to Palowsky’s amended lawsuit, conspired to conceal Campbell’s behavior. That specifically being her allegedly concealing or destroying documents Palowsky filed in his lawsuit against his former business partner.
Since this matter ensnarled the entire Fourth Judicial District Court, the Supreme Court tapped retired Judge Jerome J. “Jerry” Barbera III of Lafourche Parish to serve in an ad hoc capacity to hear Palowsky’s suit against the clerk and judges. In deep-sixing Palowsky’s suit against Campbell and the judges, Barbera ruled in November 2015 that judicial immunity extends to all judges at the court as well as for every law clerk who works for the judges.
“What law clerks do is what judges do,” Barbera said.
Palowsky appealed Barbera’s ruling to the Second Circuit Court of Appeal in Shreveport, which traditionally hears appeals of rulings originating in the Fourth Judicial District. But in August 2016, seven of the nine judges on the Second Circuit recused from hearing Palowsky’s appeal, citing potential conflicts of interest as laughable as “I have knowledge of this case” or “one of my office employees worked at the 4th Judicial District Court during the relevant time periods…”
The long and short of it is the Second Circuit didn’t want to touch Palowsky’s appeal with a 10-foot pole. For whatever reason.
That turn of events prompted Palowsky’s appeal to be reassigned to the First Circuit Court of Appeal in Baton Rouge, which entertained oral arguments in the case not once but twice. The first hearing was before a three-judge panel in February 2017. For some strange and unexplained reason, the entire First Circuit Court of Appeal called on the attorneys in the case to present oral arguments at a second hearing in January 2018.
Finally, in April 2018, the First Circuit ruled. The appeal court overturned Barbera’s ruling granting judicial immunity to Campbell, but the First Circuit let stand Barbera’s decision extending judicial immunity to every judge.
As expected, Campbell appealed the First Circuit’s ruling as it related to her to the state Supreme Court. Just as soon as Campbell filed her appeal, Palowsky appealed the First Circuit’s ruling affirming Barbera extending judicial immunity to all judges.
That, my friends, is how this mess landed at the Supreme Court, which has yet to announce when it will hear oral arguments in the case. Last week, Palowsky’s attorneys filed their written arguments with the Supreme Court while Campbell’s and the judges’ attorneys requested an extension.
It seems entirely unreasonable to suggest a judge who presides over a case does not enjoy judicial immunity. After all, if a judge was not granted immunity from being sued over his rulings in a particular case, the court would be flooded with lawsuits filed by lawyers whose clients got upset because a judge ruled against them. Chaos would reign in the courts.
So, in Palowsky’s lawsuit against the law clerk and judges, it’s only reasonable to excuse Rambo as a defendant because Rambo presided over Palowsky’s lawsuit against his former business partner. Sharp would enjoy judicial immunity too since he presided over Palowsky’s lawsuit against the former business partner for a short spell.
As for the other judges named in Palowsky’s lawsuit, nothing would indicate they were ever assigned to Palowsky’s lawsuit against his former business partner. Therein lies the question before the Supreme Court. Should Stephens, Amman and Jones, the court administrator, be granted judicial immunity simply because they are judges? Or a former judge in Jones’ case.
And that begs the question. Exactly what principle are the judges defending? Granting judicial immunity to a judge who presides over a particular case isn’t difficult to understand, but extending judicial immunity to every judge in a courthouse simply because they are judges tells us the judges believe they are above the law.
The controversy surrounding the law clerk is an entirely different matter and a far more dangerous issue altogether. It is asinine to suggest a law clerk should be extended the same rights and privileges as a judge, especially a law clerk who does not possess a license to practice law as is the case with Campbell.
If the Supreme Court agrees with Barbera and determines law clerks are the same as judges, no one should be surprised when another controversy crops up at a court somewhere in Louisiana in which a law clerk is accused of playing fast and loose with a matter pending before the court. Mark my word.
Yet, bluntly put, this case is very simple.
Is a judge who was not assigned to preside over a case, above the rule of law which he was sworn to uphold?
Even more outlandish, is a law clerk above the rule of law?
For both, the answer should be “no.”