Ouachita Parish Courthouse

NEW ORLEANS — Can a law clerk or judge at Fourth Judicial District Court in Monroe do anything they want, criminal or otherwise, and walk away without the possibility of being sued for damages?

A handful of state Supreme Court justices posed that question to attorneys during an oral arguments Tuesday as part of an appeal in Monroe businessman Stanley Palowsky III’s lawsuit against a law clerk and five judges at Fourth Judicial District Court.

Palowsky sued law clerk Allyson Campbell in 2015, claiming she concealed, shredded or destroyed several court documents he filed in a separate lawsuit against his former business partner, Brandon Cork. Palowsky also sued judges Fred Amman, Wilson Rambo, Carl Sharp, Stephens Winters and retired Judge Ben Jones, who now serves as the district court’s administrator. He claimed the judges tried to cover up Campbell’s activities.

Last year, the First Circuit Court of Appeal in Baton Rouge ruled that Palowsky could sue Campbell but not the judges. The First Circuit’s ruling centered on the legal concept of judicial immunity, which protects judges from being sued when they carry out a judicial action. A law clerk accused of shredding documents cannot enjoy judicial immunity from civil damages, though the five judges could not be sued, the appeal court ruled.

During Tuesday’s hearing at the Supreme Court, attorneys for Fourth Judicial District Court officials continued to argue their clients were absolutely immune from civil damages.

Campbell appealed the First Circuit’s ruling to the Supreme Court, arguing she could not be sued because she had assisted the judicial process.

“She’s not there to assist the judge by destroying documents,” said Joe Ward III, a Covington attorney representing Palowsky.

Palowsky also appealed the First Circuit’s ruling, arguing the judges could be sued because their management of Campbell as a court employee was administrative, not a judicial action taken from the bench.

Some justices questioned the defendants’ judicial immunity claim with references to other cases or examples, such as a court official failing to preserve a court record, a judge having sex with staff, or a judge demanding sex in exchange for a favorable ruling.

When faced with pointed questions about those immunity defenses, attorneys for Campbell and the defendant judges argued that Palowsky should not be allowed to seek evidence or question witnesses as part of discovery.

“I have not been able to take depositions, no discovery,” Ward said.

Discovery is a legal procedure allowing each party to gather evidence that would be needed at trial, whether by asking questions under oath through a deposition, requesting certain documents, or submitting written interrogatories.

At the end of the hearing, Ward said he learned of Campbell and the judges’ supposed motive for their alleged misconduct from the district attorney, though Ward was coy about the district attorney’s remarks.

“I asked the DA and he told me the motive,” said Ward, before pointing out he had not published the district attorney’s remarks about court officials’ supposed motive from his client’s petition. “That’s why nobody wants discovery in this case. Because of the motive.”

“What is going on?” he added.

The hearing at the Supreme Court Tuesday was an en banc, or full court hearing, with a group of law students in attendance, though Supreme Court Justice Marcus Clark of West Monroe recused from presiding over the case. Campbell clerked for Clark when he served on the Fourth Judicial District Court bench. In light of Clark’s recusal, retired Judge Michael Edward Kirby was assigned to serve as justice ad hoc during the hearing.

Shredding documents

Some justices appeared surprised to hear the argument that a law clerk should be shielded from a lawsuit when accused of destroying official court records.

That was the argument offered by Lawrence “Larry” Pettiette Jr., with the Shreveport law firm Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell.

“Law clerks, now more than ever, are an adjunct to the judicial function,” Pettiette said.

Pettiette represents Campbell as a special assistant attorney general, in light of the district court’s claim that a law clerk is a court official entitled to taxpayer-covered legal representation.

“What if she’s shredding documents?” said Supreme Court Justice Jefferson Hughes.

Pettiette argued that shredding someone’s court documents was “part of the process,” referring to the judicial process. His client could not be held civilly liable, he argued.

Pettiette’s argument drew more objections, from Hughes and Supreme Court Justice James Genovese.

“Is there anything a law clerk can’t do, under your theory?” Hughes said.

Genovese rephrased Pettiette’s argument, pointedly, before asking, “Are you making that argument?”

“Absolutely,” Pettiette said.

After Pettiette’s remarks turned from the law clerk to the judges’ judicial immunity claim, Genovese asked him whether a judge acting in a sexually inappropriate manner with a member of his staff was also immune to civil damages.

Pettiette sidestepped the question and said he would need to know more details about the situation before making a determination.

Pettiette closed his remarks by insisting that Palowsky should not be allowed to conduct discovery. If the justices allowed discovery to begin, judicial immunity would be worth nothing, he said.

Can a judge lose judicial immunity?

Monroe attorney Jon Guice, who represents the five defendant judges, opened up his remarks by taking a different position from Pettiette.

“Can a judge do anything to lose judicial immunity? Yes,” Guice said.

Guice argued that whether a court official shredded or destroyed or concealed a court document was irrelevant, because the simple act of handling a court document — regardless of what ultimately happened to the document — was part of the judicial function.

“Were they dealing with a normal judicial function?” Guice said. “I would submit that a court judge or court clerk’s handling of a court document is a normal judicial function.”

Unlike the oral arguments centered on Campbell’s judicial immunity claim, the five defendant judges’ claim to judicial immunity from civil damages drew more questions from Supreme Court justices, leading the hearing beyond the time limits previously set. Some justices’ remarks toward the end of the hearing revealed their disposition toward the law clerk’s judicial immunity claim.

Supreme Court Justice Scott Crichton corrected Guice for suggesting that Campbell’s alleged destruction of court documents was within the scope of a judicial act.

“Well, shredding an original court document is not a judicial function,” Crichton said.

“It’s not the act, but the function,” Guice said in reply.

Like Pettiette, Guice shifted his arguments to oppose allowing discovery in the case.

“Discovery is not needed,” Guice said. “We need not get into discovery. If you delve into discovery, you risk distorting the whole purpose of absolute immunity.”

Kirby, the ad hoc justice, indicated a court reporter was not absolutely immune from civil damages for failing to produce a court transcript.

Kirby was referring to a 1992 ruling by the U.S. Court of Appeals for the Ninth Circuit in Antoine v. Byers & Anderson Inc. and others.

Kirby appeared to suggest a court transcript was a court document, just like those at the heart of Palowsky v. Campbell.

“It seems to me that a verbatim record is just as important as a judge’s opinion,” Kirby said.

Genovese asked Guice whether a judge could commit an intentionally damaging act and walk away.

“No, sir,” said Guice, before arguing that a judge’s actions were protected under absolute judicial immunity if they were taken on the bench or near the nexus of the judicial process.

If a judge’s actions while on the bench were reprehensible, the judge could be held responsible by the Judiciary Commission or by voters during the next election, but the judge could not be sued for damages, Guice argued.

Genovese questioned Guice again about whether a judge enjoyed judicial immunity no matter what they did.

Hughes followed up on Genovese’s inquiry by inviting Guice to apply his point to an incident where a judge offered a woman custody of her children in exchange for sex in the judge’s chambers.

Using Guice’s logic, Genovese answered Hughes’ question by stating the granting child custody was judicial but having sex in the judge’s chambers was not.

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