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Palowsky v. Campbell

Supreme Court of Louisiana

June 26, 2019



          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 judge's exercise of administrative functions, such as "supervising court employees and overseeing the efficient operation of a court-may have been quite important in providing the necessary conditions of a sound adjudicative system," but such administrative decisions "were not themselves judicial or adjudicative." Therefore, accepting on the well-pleaded allegations of plaintiff's petition, absolute judicial immunity would not apply, and plaintiff is able to state a cause of action against the judges.

         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.


         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.

          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.

          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 court, in Berry v. Bass, 102 So. 76, 81 (La. 1924), reviewed the prior case law and stated that when judges "have exercised their functions in good faith, without malice or corruption, they should not be held liable for errors of judgment." Over the years, the significance of allegations of malice and corruption slightly changed. For example, in Moore v. Taylor, 541 So.2d 378, 381 (La.App. 2 Cir. 1989), the court suggested allegations of malice and corruption have their place within a two-part test: (1) the plaintiff must show the judge acted outside his judicial capacity and (2) even if the judge "has technically acted outside his jurisdiction and contrary to law, he will remain protected unless his actions were based on malice or corruption."

         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 challenged act/omission stems from a judicial function, the judge is immune from suit. On the other hand, if the challenged act/omission is outside a judicial function, immunity does not apply. See Id. (explaining "immunity is appropriate" for judicial acts, but not for "acts that simply happen to have been done by judges.").

         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 La. R.S. 14:132; see also La. R.S. 14:25. The doctrine of judicial immunity does not shield judicial actors from civil liability for criminal acts committed outside the judicial function. See Mireles, 502 U.S. at 9-10 n.1.

         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 La. Const. art. V, § 25(C); La. Sup. Ct. Rule XIX. Thus, judges and law clerks are not above the law, but are rightfully accountable within the civil justice system-just as any other person-when acting outside their judicial function.

         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 La. C.C.P. art. 856), in order to demonstrate why the civil justice system should be employed against a judge or law clerk, the particularity requirement must apply. As this case demonstrates by the recusal of an entire circuit court, it is no routine matter for the civil justice system to adjudicate monetary claims against its judges or law clerks. Therefore, the particularity requirement rightly imposes a responsibility on a claimant to facially justify whatever extraordinary measures may be necessary. Relatedly, La. C.C.P. art. 863 imposes protections, in the form of sanctions, against a claimant submitting spurious pleadings.

         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 La. C.C.P. art. 931 ("No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action."). Therefore, we are required by law to accept these allegations as true at this preliminary stage of the proceeding. SeeCity of New Orleans v. Bd. of Comm'rs of Orleans Levee Dist., 93-0690, p. 28 (La. 7/5/94); 640 So.2d 237, 253 ("In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party."). Proof, however, of these allegations is a far different matter, and the party ...

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