An ad hoc judge jettisoned a lawsuit against Fourth Judicial District Court officials last week, ruling that five judges and a law clerk could not be sued, even when accused of criminal acts.
Through judicial immunity, judges as well as their law clerks, enjoy protection from litigation for all acts within the scope of their work, according to retired Judge Jerry Barbera, a former district court judge from Lafourche Parish.
“What law clerks do is what judges do,” he said.
According to Barbera's ruling, judicial immunity shielded law clerk Allyson Campbell from Monroe businessman Stanley Palowsky's accusations that she destroyed or concealed documents he filed with the court in another lawsuit.
Though Palowsky accused five defendant judges of aiding and covering up Campbell's actions, the plaintiff's accusations could not be explored because the judges also enjoy the privilege of judicial immunity, Barbera ruled. The five defendant judges include Fourth Judicial District Court judges Fred Amman, Wilson Rambo, Carl Sharp, Stephens Winters as well as court administrator and retired Judge Ben Jones.
On those grounds, Barbera dismissed with prejudice the plaintiff's lawsuit, Stanley R. Palowsky III vs. Allyson Campbell and others, during a Nov. 5 hearing at the Ouachita Parish Courthouse.
Barbera reached that decision after significantly trimming Palowsky's lawsuit. Barbera partially granted defense motions to strike numerous allegations contained in Palowsky's lawsuit, penned by plaintiff attorneys Sedric Banks of Monroe and Joe Ward of Covington. Ultimately, Barbera ordered more than half of Palowsky's lawsuit be stricken.
Before concluding last week's hearing, Barbera made an unusual ruling to seal the record in Stanley R. Palowsky III vs. Allyson Campbell and others. Sealing the record also meant attorneys could not provide pleadings in the record to anyone, he said.
“I'm going to order this record sealed except for counsel, members of the staff and Fourth Judicial District Court judges,” Barbera said. “Counsel are also ordered not to produce copies of pleadings in the record to any other person or company.”
Prior to last week's hearing, Barbera met with counsel, and later said there was discussion on whether defense motions for contempt and their request for sanctions against Banks and Ward would be heard that day as well. That matter prompted an inquiry to the Louisiana Supreme Court, which appointed Barbera to preside as an ad hoc judge over Stanley Palowsky III vs. Allyson Campbell and others.
“Just to make sure I wasn't violating or running around what the Supreme Court wanted me to do,” said Barbera, after a phone call with an unidentified Supreme Court official. “The Supreme Court left that to my discretion...that is, to defer hearings on sanctions and motions for contempt.”
Barbera later said the issue of contempt and sanctions would be reset.
The Supreme Court had previously overturned a ruling Barbera made in the same case. Barbera ruled in September that Palowsky's attorneys could not conduct discovery, forbidding them from taking depositions or answering interrogatories. A Second Circuit Court of Appeal denied Palowsky’s appeal, and Palowsky's attorneys appealed to the state's high court. On Nov. 3, the Supreme Court granted Palowsky’s appeal to remove Barbera's stay of discovery. The Supreme Court also ordered the district court to hear the exceptions of no cause of action and motion to strike, but to defer hearings on the several other pending exceptions and motions filed by defendants.
“In the event the district court concludes plaintiff states a cause of action, it should permit plaintiff a reasonable opportunity to conduct discovery on the remaining exceptions prior to a hearing on these exceptions,” the Supreme Court stated.
In last week's hearing, Barbera said he interpreted his directive from the Supreme Court to mean he would allow discovery only if there was a legitimate cause of action. Since he found no cause of action and dismissed Palowsky's lawsuit against court officials, discovery was still forbidden.
“There is no cause of action so the order staying discovery remains in effect,” Barbera said.
Last week's hearing commenced with a hearing on defense motions to strike allegations from Banks' and Ward's petition before advancing to a hearing on the defense’s exceptions of no cause of action.
Brian Crawford, a Monroe attorney representing Campbell, asked the court to strike 52 of 88 articles, or sections, in the petition written by Banks and Ward because of the “immaterial and scandalous and indecent nature of those pleadings.”
“They are scandalous because they improperly cast a derogatory light on the defendant,” Crawford said. “Our position is that once the court takes what we believe to be the appropriate action and narrow these claims...we can address the no cause of action and other exceptions.”
Jon Guice, a Monroe attorney representing the five defendant judges, said the claims in the petition should be strictly narrowed to whether court documents were destroyed. The allegations in Banks' and Ward's petition included excerpts from Campbell's social column for The News-Star, her Facebook posts and photos involving alcoholic beverages as well as The Ouachita Citizen's series of public records requests concerning Campbell's personnel file.
“It was not a suit for damages, it was suit to damage,” Guice said. “This case is not about Facebook, public records requests, when an out-of-town judge signed a ruling...”
Ward said each article in his and Banks' petition was connected by Campbell, the “one thread” he later described as “a court employee who was not supervised.” Ward said he could show evidence for the allegations in the petition, too.
“The relevance or non-relevance can be debated in a trial,” Ward said. “I've told facts. I've gone far beyond what I normally do. It proves motive, opportunity and means.”
Barbera said the court's responsibility was to determine whether the allegations the defendant sought to strike should be included in the petition, or within the scope of the litigation. Barbera described “all of the information” in Banks' and Ward's pleadings as “prejudicial,” especially those details related to Campbell.
“It suggests to the reader these parties (Campbell and the five defendant judges) are acting contradictory to their ethics, that they've committed a crime,” Barbera said. “There's no doubt these allegations are prejudicial. Anyone who would read these allegations would make conclusions about Allyson Campbell and the judges.”
“It is evident to me that many of them (articles in the petition) are immaterial to the cause of action,” Barbera said.
Barbera acknowledged a difference between immateriality and evidence, but said determining where the articles in Banks' and Ward's petition fit in that dichotomy was not relevant to the defendants' motion to strike.
“I don't know that all of those (articles in the amended petition) are admissible in evidence because I'm not called on to rule on that today,” Barbera said. “Most of the articles pointed out are not material.”
Barbera ruled to strike 46 articles from Banks' and Ward's amended petition, as well as the paragraphs of three other articles in the petition.
Guice commended the court for granting the motion to strike articles from Banks' and Ward's petition, resulting in a petition “plainly boiled down to a dispute.” With the issues in Banks' and Ward's petition reduced by more than half, the judges clearly enjoyed “absolute judicial immunity” in the face of the remaining allegations in the petition, according to Guice.
“We can now squarely focus in,” Guice said. “We are squarely in a case dealing with judicial issues.”
According to Guice, Palowsky's lawsuit against Campbell and the defendant judges was manufactured to obtain the recusals of all judges in Fourth Judicial District Court for the sake of Palowsky's lawsuit against his former business partner, Brandon Cork and others.
“This case was made to secure recusals,” Guice said. “We cannot allow judges to fear subsequent litigation...that is what we have here.”
The only accusations left in Palowsky's pleadings concerned Campbell's actions “in the judicial process, her actions as a law clerk and adjutant,” according to Crawford.
“As courts have often ruled, it would be unfair to allow judges out on immunity but not a law clerk,” Crawford said.
Crawford likened the scope of Campbell's duties as a law clerk to those of a judge.
“If a judge threw away some documents, he or she'd enjoy judicial immunity to litigation,” Crawford said. “Same applies to Allyson Campbell.”
That argument goes too far, according to Ward. Ward said the criminal destruction of court documents should not be considered part of the judicial process.
“I don't think it's a normal judicial function to destroy evidence or records,” Ward said. “We do not think Ms. Campbell's act of destroying documents is a judicial action.”
Barbera said he would sustain the judges' no cause of action and dismiss with prejudice.
“I understand that lay people have difficulty grasping concepts of judicial immunity,” Barbera said. “It seems to be something foreign to discussion of what's right or wrong.”
“It provokes concern,” he added.
Judicial immunity has “reasons deeply rooted in our judicial system,” according to Barbera, who previously escaped — via judicial immunity — a 2005 lawsuit accusing him of ex parte discussions and manipulation of the judicial process.
“Judges should not have to answer to litigant for decisions they have made,” said Barbera, who noted that Louisiana courts often cite federal case law on judicial immunity because of a lack of jurisprudence among Louisiana courts.
When Barbera ruled to sustain Campbell's no cause of action and dismiss Palowsky's lawsuit against her, he said, “This is a new area for me,” referring to the court's act of granting judicial immunity to a law clerk.
“There's no question that the supervision and control of a law clerk falls within the jurisdiction of a district court judge,” Barbera said.
As case law related to a law clerk's access to judicial immunity has developed, “the question of whether a law clerk should be granted immunity is usually tied to whether a judge also is granted immunity,” Barbera said.
Citing three federal cases, Barbera concluded that Campbell should be protected since she assisted the judges and aided them in their decision-making. Those cases were Oliva v. Heller (1987), Mitchell v. McBryde (1991), Moore v. Brewster (1996).
“A law clerk's work is a judge's work,” he said.
Later, Barbera acknowledged there were substantial differences between the accusations in the three federal cases cited and the accusations of criminal behavior in Banks' and Ward's petition.
“I recognize the difference of the acts in this case from the facts in other cases involving law clerks,” said Barbera, who said he believes Banks' and Ward's narrowed petition “never alleges Ms. Campbell took those actions at the direction of a judge or the judges.”