STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.
ALLYSON CAMPBELL, ET AL.
WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF OUACHITA
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__.
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.
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
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.
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.
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.
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.
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."
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).
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
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
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).
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.
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.
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.
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
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.
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