Stanley R. Palowsky, III, Individually, and on Behalf of Alternative Environmental Solutions, Inc. v. Allyson Campbell

• Court: Supreme Court of Louisiana
• Decided: June 26, 2019
• Docket: 2018-C-1105 C/W 2018-C-1115
• Status: Published

Opinion

Supreme Court of Louisiana FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #027

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 26th day of June, 2019, are as follows:

PER CURIAM:

2018-C-1105 STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF C/W ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. v. ALLYSON CAMPBELL, ET 2018-C-1115 AL. (Parish of Ouachita)

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.

REVERSED IN PART AND REMANDED.

Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Justice Clark, recused.

JOHNSON, C.J., concurs in part and dissents in part and assigns reasons. WEIMER, J., concurs and assigns reasons. GUIDRY, J., dissents and assigns reasons. CRICHTON, J., dissents and assigns reasons. KIRBY, J., concurs and assigns reasons. 06/26/19

SUPREME COURT OF LOUISIANA

No. 2018-C-1105

CONSOLIDATED WITH

No. 2018-C-1115

STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.

VERSUS

ALLYSON CAMPBELL, ET AL.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA

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

* Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Clark, J., recused. 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

2 portions of that judgment.

DECREE

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.

3 06/26/19

STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA

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.

1 06/26/19

STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA

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 2 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

3 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.

4 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

5 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.

6 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. See City 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 making the allegations will not benefit from any presumption

of truth. Rather, the party making the allegations will bear the burden of proving the

allegations are true as this matter proceeds.

7 06/26/19

STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA

Guidry, J., dissents and assigns reasons.

I respectfully dissent from the court’s per curiam opinion holding that the

alleged actions and omissions of the defendant judges and law clerk are

administrative rather than judicial and finding that neither the judges nor the law

clerk are entitled to judicial immunity. Despite numerous allegations contained in

Mr. Palowsky’s petition and amended petition filed in the present action, Mr.

Palowsky has legal standing to pursue only the claims against these defendants that

relate to their actions and/or inactions in the separate Palowsky v. Cork case. Because

those alleged actions/inactions relate to another case pending before the court, they

are decidedly judicial in nature. As such, these defendants are entitled to judicial

immunity from civil liability.

BACKGROUND

Plaintiff, Stanley Palowsky, is also the plaintiff in a separate case pending

before the Fourth Judicial District Court, Palowsky v. Cork, No. 13-2059 (“Cork”), 06/26/19

in which Mr. Palowsky is suing his business partner.1 Palowsky’s present lawsuit

asserts claims for damages as a result of Fourth Judicial District Court law clerk

Allyson Campbell’s alleged destruction of documents in the Cork case. The original

petition alleged that Campbell:

maliciously and intentionally harmed Palowsky and willfully violated his constitutionally protected rights to both due process and access to courts [when] she spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly ‘handled’ court documents such as memoranda of law, orders, pleadings, sealed court documents, and chamber copies of pleadings filed with the clerk and hand-delivered to the judge’s office.

Palowsky further alleged Campbell “maliciously withheld and concealed documents

and pleadings in the trial court as well as from the record that was sent to the Second

Circuit Court of Appeal” and that her actions amount to fraud, abuse of process, and

a violation of La. R.S. 14:132 (the criminal statute addressing the destruction or

alteration of public records), as well as intentional infliction of emotional distress.2

In a supplemental and amended petition, Palowsky named as additional

defendants Chief Judge H. Stephens Winters and Judges Carl Sharp, Benjamin

Jones, J. Wilson Rambo, and Frederic Amman, asserting that the judges were

involved in an investigation into a criminal complaint against the Court for payroll

fraud involving Campbell. The amended petition states that “Defendant Judges all

owe an administrative duty to properly audit, investigate, and report suspected

payroll fraud;” that the judges “actively schemed to cover up same;” and that the

judges failed to supervise the law clerk. Mr. Palowsky further alleged that Judges

1 In the original Petition for Damages filed in the present case, Mr. Palowsky explains that he appears both individually and as a 50% shareholder and director of Alternative Environmental Solutions, Inc. (“AESI”). AESI is also named a “nominal defendant” in this case, but Mr. Palowsky states that “it would be a vain and useless act for him to demand that AESI bring the present action as the other 50-percent shareholder of AESI is W. Brandon Cork, who … has been sued by Palowsky in a related action.” 2 Mr. Palowsky also alleged Ms. Campbell had a history of payroll fraud, as she was repeatedly absent from work and posted several pictures on Facebook indicating she did her job in restaurants or bars, often while drinking alcohol; that she had a history of destroying documents in other litigants’ cases; and that 52 writ applications, which had been missing for more than a year, were discovered in Ms. Campbell’s office, but she was never reprimanded. 2 06/26/19

Amman, Sharp, and Rambo committed payroll fraud in certifying her timesheets and

records for payroll and in covering up the scheme, and that they violated multiple

Canons of the Code of Judicial Conduct. As a result, Mr. Palowsky claims he is

entitled to be compensated for any and all damages that he and his company have

suffered.

Ms. Campbell and defendant judges filed separate exceptions of no cause of

action. The trial court granted Ms. Campbell’s and the judges’ exceptions, agreeing

that Mr. Palowsky’s claims for civil damages were barred by the doctrine of absolute

judicial immunity.

Mr. Palowsky appealed. A majority of the First Circuit,3 en banc, upheld the

trial court’s ruling as to the defendant judges but reversed the trial court’s ruling as

to the law clerk, finding that she was not entitled to judicial immunity and overruling

her exception of no cause of action.

Mr. Palowsky and Ms. Campbell filed writ applications in this court seeking

review of the court of appeal’s ruling. This court granted both writ applications and

heard oral argument to determine whether the doctrine of judicial immunity applies

to bar Mr. Palowsky’s claims against Ms. Campbell and/or the defendant judges.

APPLICABLE LAW

Judicial Immunity

The United States Supreme Court consistently has recognized a judge’s

absolute immunity from civil liability when he or she is sued for actions taken

pursuant to his or her judicial power and authority. “Few doctrines were more solidly

established at common law than the immunity of judges from liability for damages

for acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547,

553-54, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (citing Bradley v. Fisher, 13 Wall.

3 Ordinarily this matter would have been appealed to the Second Circuit Court of Appeal, but the judges of the Second Circuit recused themselves. This Court transferred Mr. Palowsky’s appeal to the First Circuit Court of Appeal for review. 3 06/26/19

335, 20 L.Ed. 646 (1872)). Two exceptions exist when applying the doctrine of

judicial immunity, however:

First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Forrester v. White, 484 U.S., at 227-229, 108 S.Ct., at 544-545; Stump v. Sparkman, 435 U.S., at 360, 98 S.Ct., at 1106. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Id., at 356-357, 98 S.Ct., at 1104-1105; Bradley v. Fisher, 13 Wall., at 351.

Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 206, 116 L.Ed.2d 9 (1991). More

succinctly, administrative decisions, even those necessary for the functioning of the

court, have not been regarded as judicial acts. Forrester, 484 U.S. at 228.

On the other hand, when judicial acts performed within a judge’s jurisdiction

are committed “with malice,” courts have granted immunity. The Supreme Court in

Pierson stated:

This immunity applies even when the judge is accused of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ [Citations omitted.]

386 U.S. at 554. See also Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991);

Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir. 1989); Harlow v. Fitzgerald,

457 U.S. 800, 815-19, 102 S.Ct. 2727, 2736-39, 73 L.Ed.2d 396 (1982) (allegations

of malice are insufficient to overcome qualified immunity).

Louisiana has likewise recognized that judges acting within the scope of their

subject matter jurisdiction cannot be held liable for acts done in their judicial

capacities. Killeen v. Boland, Gschwind Co., 157 La. 566, 574, 102 So. 672 (1924);

see also Knapper v. Connick, 96-0434, p. 5 (La. 10/15/96), 671 So.2d 944, 947

(“[W]e have harmonized our own state immunity rules with federal immunity

principles in the past.”). To that end, this court has defined the broad nature of

4 06/26/19

absolute judicial immunity as attaching “to all acts within a judge’s jurisdiction,

even if those acts can be shown to have been performed with malice, in order to

insure that all judges will be free to fulfill their responsibilities without the threat of

civil prosecution by disgruntled litigants.” Knapper, 681 So.2d at 946 (emphasis

added). “[I]f only the particular act in question were to be scrutinized, then any

mistake of a judge in excess of his authority would become a ‘nonjudicial’ act,

because an improper or erroneous act cannot be said to be normally performed by a

judge. If judicial immunity means anything, it means that a judge ‘will not be

deprived of immunity because the action he took was in error … or was in excess of

his authority.’ ” Mireles, 502 U.S. at 12-13 (quoting Stump v. Sparkman, 435 U.S.

349, 362, 98 S.Ct. 1099, 1108, 55 L.Ed.2d 331 (1978)).

Absolute immunity is not limited strictly to judges, however. “The concern

for the integrity of the judicial process underlying the absolute immunity of judges

also is reflected in the extension of absolute immunity to ‘certain others who perform

functions closely associated with the judicial process.’” Oliva v. Heller, 839 F.2d

37, 39 (2nd Cir. 1988) (quoting Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct.

496, 500, 88 L.Ed.2d 507 (1985)). To determine who is covered by an extension of

judicial immunity, the Supreme Court follows a functional approach, looking not to

the title of the person performing the action but to the nature of the responsibilities

being performed. Oliva, 839 F.2d at 39.

Courts have recognized absolute immunity on behalf of a law clerk when the

law clerk’s actions are substantially intertwined with those of a judge who is acting

in a judicial capacity and with proper jurisdiction. The Oliva court, affirming the

district court’s finding of judicial immunity for both the law clerk and the judge,

agreed that the duties of a law clerk are closely intertwined with the work of the

judge:

5 06/26/19

[T]he work of judges’ law clerks is entirely [judicial in nature]. Law clerks are closely connected with the court’s decision-making process. Law clerks are “sounding boards for tentative opinions and legal researchers who seek the authorities that affect decisions. Clerks are privy to the judge’s thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be.” Hall v. Small Business Administration, 695 F.2d 175, 179 (5th Cir. 1983). Moreover, the work done by law clerks is supervised, approved, and adopted by the judges who initially authorized it. A judicial opinion is not that of the law clerk, but of the judge. Law clerks are simply extensions of the judges at whose pleasure they serve.

Oliva, 839 F.2d at 40 (quoting Oliva v. Heller, 670 F.Supp. 523, 526 (S.D.N.Y.

1988)).

In Mitchell v. McBryde, 944 F.2d at 230, the Fifth Circuit Court of Appeals

found absolute judicial immunity from a suit alleging a judge had maliciously

conspired with his law clerk to set aside a default judgment that plaintiffs had

obtained in a prior lawsuit. Citing Oliva, supra, the Mitchell court agreed that

judicial immunity, as applied to the judge, extended to the law clerk as well. See also

Little v. Hammond, 774 Fed.Appx. 748, 750 (3rd Cir. 2018) (judge and law clerk

both entitled to judicial immunity from litigant’s 1983 action alleging conspiracy

related to his criminal and child custody proceedings); Jackson v. Houck, 181

Fed.Appx. 372, 373 (4th Cir. 2006) (affirming district court’s dismissal of plaintiff’s

suit after finding judge and law clerk were entitled to absolute judicial immunity

from civil rights suit); Bradley v. U.S., 84 Fed.Appx. 492, 493 (6th Cir. 2003) (judges,

law clerk, and court clerk were entitled to judicial immunity in prisoner’s civil rights

suit alleging they violated his right of access to courts, as they were acting “in their

judicial and quasi-judicial duties”).

No Cause of Action and Standing

The peremptory exception of no cause of action is designed to test the legal

sufficiency of a petition by determining whether a party is afforded a remedy in law

based on the facts alleged in the pleading. La. C.C.P. arts. 681 and 927; Foti v.

6 06/26/19

Holliday, 09-0093, p.5 (La. 10/30/09), 27 So.3d 813, 817. All well-pleaded

allegations of fact are accepted as true, and all doubts are resolved in favor of

sufficiency of the petition. La. C.C.P. art. 865; Kuebler v. Martin, 578 So.2d 113,

114 (La.1991). The burden of demonstrating that a petition fails to state a cause of

action is upon the mover. Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d

114, 119.

The sufficiency of a petition subject to an exception of no cause of action is a

question of law. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. A

de novo standard is applied to the review of legal questions, wherein this court

renders a judgment based on the record without deference to the legal conclusions

of the lower courts. Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 01-2162, p.

3 (La.4/3/02), 813 So.2d 351, 353.

A trial or appellate court may raise issues of standing on its own motion. La.

C.C.P. art. 927 B; Turner v. Busby, 03-3444, p. 4 (La. 9/9/04), 883 So.2d 412, 415-

16. “The predicate requirement of standing is satisfied if [the litigant] has an interest

at stake in litigation which can be legally protected.” In re: Melancon, 05-1702, p. 9

(La. 7/10/06), 935 So.2d 661, 668. “The standing inquiry requires careful

examination of whether a particular litigant is entitled to an adjudication of the

particular claim it has asserted.” In re Matter Under Investigation, 07-1853, p. 10

(La. 7/1/09), 15 So.3d 972, 981 (citing Melancon, 935 So.2d at 668). When the facts

alleged provide a remedy to someone, but the litigant who seeks relief is not the

person in whose favor the law extends the remedy, that litigant is without standing.

Melancon, 935 So.2d at 668.

ANALYSIS

Mr. Palowsky alleged that the law clerk “spoliated, concealed, removed,

destroyed, shredded, withheld, and/or improperly ‘handled’ court documents” in the

Cork litigation and that the judges covered up these actions. Although his petition

includes additional allegations unrelated to Cork, Mr. Palowsky has standing in the

present case only with regard to the allegations related to the Cork litigation. Stated

differently, he has no standing to assert claims against these defendants for alleged

payroll fraud, nor for any other claims separate from the Cork litigation, because he

cannot demonstrate that he has a particular interest outside of the Cork litigation. “A

plaintiff must have a real and actual interest in the action he asserts, LSA-C.C.P. art.

681. Without a showing of some special interest … separate and distinct from the

interest of the public at large, plaintiff will not be permitted to proceed.” League of

Women Voters v. City of New Orleans, 381 So.2d 441, 447 (La. 1980).

The claims against the law clerk and judges for which Mr. Palowsky has

standing arise from his alleged damages sustained from their handling of the Cork

litigation. The very allegations that he asserts against the law clerk—destruction of

court filings—arise as a result of the judicial functions being performed in

conjunction with that lawsuit. Mr. Palowsky’s additional allegations, such as payroll

fraud, are concerns of the public at large but do not state a claim that is particular to

Mr. Palowsky.

The majority’s determination that the law clerk’s actions in a case assigned to

the law clerk’s judge are “administrative” ignores the broad scope of judicial

immunity and creates a slippery slope by which courts will have to parse every action

or inaction in the cases assigned to them to determine whether such action (or

inaction) is judicial, administrative, or something else. “[T]he opening of any inroads

weakening judicial immunity could have the gravest consequences to our system of

justice.” McAlester v. Brown, 49 F.2d 1280, 1283 (5th Cir. 1972).

Similarly, to the extent Mr. Palowsky has standing to assert allegations that

the judges failed to supervise the law clerk, the alleged lack of supervision falls

within the judges’ judicial capacity. It is not necessary to determine whether the

additional allegations of misconduct asserted against these defendants, but unrelated

8 06/26/19

to Cork, are judicial or administrative, as Mr. Palowsky has no standing to pursue

these claims.

Furthermore, I find the present facts distinguishable from the facts in

Forrester, a case in which the U.S. Supreme Court held that a judge who allegedly

demoted a probation officer on the basis of her sex was not entitled to judicial

immunity, as the judge was acting in an administrative capacity rather than a judicial

capacity. 484 U.S. at 229. In stark contrast to the employment claim asserted in

Forrester, the claims for which Mr. Palowsky has standing are grounded in the

defendants’ judicial functions.

My views regarding the broad scope of judicial immunity and its application

to these facts in no way indicates that I wish to turn a blind eye to Mr. Palowsky’s

allegations. Every litigant in any court of law is entitled to justice dispensed by a fair

and impartial judiciary. If these defendants failed Mr. Palowsky in that regard, they

may be subjected to other discipline, including potential criminal charges for

destruction of public records. But I cannot say that the allegations for which Mr.

Palowsky has standing, as ill-considered and distasteful as they may be, justify the

erosion of judicial immunity, which has been recognized by state and federal courts

for more than a century.

Accordingly, I would reverse the portion of the court of appeal’s decision that

overruled Ms. Campbell’s exception of no cause of action based on judicial

immunity and affirm the court of appeal’s ruling sustaining the judges’ exception of

no cause of action. Under these facts, these defendants are absolutely immune from

suit.

9 06/26/19

STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA

Crichton, J., dissents and assigns reasons.

I agree with the majority’s conclusion that the alleged actions at issue are

outrageous. However, in my view, the per curiam conflicts with the established

principle of judicial immunity, which is based in over 150 years of federal and state

jurisprudence and is foundational to the rule of law. It also risks eroding the

independence of the judiciary and could adversely affect the public interest,

including the paramount interest of protection of the public and the impartial

administration of justice. See, e.g., Knapper v. Connick, 96-0434, p.3 (La. 10/15/96),

681 So. 2d 944, 946 (“Absolute immunity attaches to all acts within a judge’s

jurisdiction, even if those acts can be shown to have been performed with malice, in

order to insure that all judges will be free to fulfill their responsibilities without the

threat of civil prosecution by disgruntled litigants.”); Pierson v. Ray, 386 U.S. 547,

554 (1967) (“[A judge] should not have to fear that unsatisfied litigants may hound

him with litigation charging malice or corruption. Imposing such a burden on judges

would contribute not to principled and fearless decision-making but to intimidation.”); Bradley v. Fisher, 80 U.S. 335, 347 (1871) (explaining that the

public is “deeply invested” in the principle of judicial immunity, “which indeed

exists for their benefit, and was established in order to secure the independence of

the judges, and prevent them being harassed by vexatious actions”).1 I therefore

dissent, for the reasons assigned by Justice Guidry.

I write separately from Justice Guidry solely to note that judicial immunity is

absolutely not a “get out of jail free” card for any of the parties herein, nor should

this dissent be construed to condone the disturbing allegations against the rogue law

clerk and the judges. Proper application of the immunity doctrine here would

immunize the clerk and judges only from civil liability, i.e., payment of monetary

damages to the plaintiffs, and leaves open other remedies against them. In addition

to losing her job, assuming, arguendo, that the relevant time limitations for

prosecution have not elapsed, the law clerk’s actions may meet the elements of a

violation of criminal law, the consequences of which could include a fine and/or

imprisonment for a felony crime. See R.S. 14:132 (Injuring Public Records). The

judges could also be subject to prosecution for their role in this sordid affair. See

R.S. 14:25 (Accessory After the Fact). Additionally, the judges may be subject to

discipline by the appropriate authorities for violation of the judicial canons, which

could include suspension without pay or even removal from office. See, e.g., Canons

2, 3. And, of course, they may face consequences at the ballot box. See Randall v.

Brigham, 74 U.S. 523 (1868) (“If faithless, if corrupt, if dishonest, if partial, if

oppressive or arbitrary, they may be called to account by impeachment, and removed

1 Indeed, in my view, it can be no other way. Judicial immunity is “immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). This immunity therefore prevents judges from being hauled into court as defendants, which could subject the entirety of their decision-making processes to virtually unlimited discovery. See Rehberg v. Paulk, 566 U.S. 356, 370 (“Judges, on mere allegations of conspiracy or prior agreement, could be hauled into court and made to defend their judicial acts, the precise result judicial immunity was designed to avoid.”) (quoting Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985)). 2 from office. . . . But responsible they are not to private parties in civil actions for

their judicial acts, however injurious may be those acts, and however much they may

deserve condemnation. . . .”); Bradley v. Fisher, 80 U.S. 335, 354 (1871) (“[F]or

malice or corruption in their action whilst exercising their judicial functions within

the general scope of their jurisdiction, the judges of these courts can only be reached

by public prosecution in the form of impeachment, or in such other form as may be

specially prescribed.”).

The defendants may therefore still face significant repercussions for their

disgraceful conduct. However, in my view, those repercussions cannot include civil

liability. In finding otherwise, I believe the per curiam is an aberration that could

result in the erosion of the principle of immunity, which is intended to protect the

public interest and the independence of the judiciary.

STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF OUACHITA

Kirby, J., ad hoc, concurs and assigns reasons.

I fully concur with the rationale and holding of the majority per curiam. As

stated therein, at this stage of these proceedings, this result is required by the decision

of the United States Supreme Court in Forrester v. White 484 U.S. 219, 108 S.Ct.

538, 98 L.Ed.2d 555 (1988). In her opinion for a unanimous court, Justice O’Connor

recognized the inherent difficulty in distinguishing between “truly judicial acts”

entitled to immunity and those “that simply happen to have been done by judges”

for which immunity is not appropriate. The vexation comes from the fact, also noted

by Justice O’Connor, that the court has never precisely defined the acts entitled to

judicial immunity, deferring instead to a “functional” analysis where the nature of

the function performed, not the identity of the actor, governs the immunity analysis.

It is worth noting that Canon 3 of the Louisiana Code of Judicial Conduct,

clearly recognizes the dichotomy between adjudicative and administrative duties.

Specifically, Canon 3 (B) captioned “Administrative Responsibilities” provides:

(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, . . ..

(2) A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

(3) * * *

(4) A judge shall not make unnecessary appointments. A judge should exercise the power of appointment impartially and on the basis of merit. A judge should avoid appointments which tend to create the appearance of impropriety. A judge shall not approve the compensation of appointees beyond the fair value of services rendered . . ..

In my view the well pleaded facts of the petition at issue here merely present

the reverse factual scenario confronting the Forrester, supra, court. There, a judge

was sued for allegedly wrongfully discharging an employee. Here the gravamen of

the complaint is that the defendants did not terminate an employee who was

performing her duties improperly.1 Admittedly, La. R. S. 13:700 authorizes each

1 For example: Paragraphs 9 and 10 of the petition allege the law clerk is not a licensed attorney, implicating Canon 3 (B) (2), relative to requiring staff to maintain professional competence, Canon 3 (B) (4) relative to judges exercising the power of appointment impartially based upon merit and not approving compensation beyond the fair value of services rendered. Paragraph 28 alleges that the law clerk has a history of committing payroll fraud and destroying or concealing documents, implicating Canon 3 (B) (2) relative to requiring staff to refrain from manifesting bias or prejudice in the performance of their official duties and Cannon 3 (B) (4) relative to a judge making appointments that create the appearance of impropriety. Paragraphs 32 through 35 and 38, alleging the clerk's newspaper article, "A modern guide to handle your scandal," the complaint made to the judges who initiated an investigation and verified the facts but took no disciplinary or remedial action, implicating Canon 3 (B) (1) relative to maintaining professional competence in judicial administration, Canon 3 (B) (2) relative to requiring staff to observe standards of fidelity and diligence and to refrain from manifesting bias or prejudice in the performance of their official duties and Canon 3 (B) (4) regarding appointments that create the appearance of impropriety. Paragraphs 45, 46, 48 and 50 alleging the clerk's spoliated, destroyed and withheld records which certain defendants actively worked to cover up, again implicating Canon 3 (A) (1) regarding judges discharging their administrative responsibilities without bias or prejudice, Canon 3 (B) (2) regarding requiring staff to observe standards of fidelity and competence applicable to judges and to refrain from manifesting bias or prejudice in the performance of their duties and Canon 3 (B) (4) regarding judges avoiding appointments that create the appearance of impropriety. 2 06/26/19

judge of the Fourth Judicial District Court to hire a law clerk “to perform such

research duties” as the judge may assign. However, none of plaintiff’s allegations

against the law clerk pertain to her statutorily authorized duties. Plaintiff’s litany of

her alleged past malefactions is not to assert a claim for damages resulting from

them, but rather to demonstrate the length of time over which the alleged excesses

occurred thereby suggesting her employers, who simply happen to have been judges,

failed to properly supervise their employee.

Insofar as the law clerk herself is concerned, she is only entitled to immunity

when acting at the direction of a judge or pursuant to an established rule of court.

Oliva v. Heller 839 Fed 2d 37 (2d Cir. 1988) only grants a law clerk immunity when

assisting a judge with his judicial functions: “Accordingly, we hold that the

defendant, who was clearly assisting the judge in carrying out judicial functions was

covered by the doctrine of absolute immunity.” Oliva, supra, at 40. See also Johnson

v. Parish of Jefferson, 2009 WL 1808718: “Court employees who act under the

explicit instructions of a judge ‘acts as the arm of the judge and comes with [sic] his

absolute immunity,’ even if the employees act ‘in bad faith or with malice.’”

Williams v. Wood, 612 F.2d 982, 985 (5th Cir.1980). Mitchell v. McBryde, 944 F.2d

229, 230-31 (5th Cir.1991). [Emphasis added.] Likewise, Guccione v. Parish of

Jefferson, 382 Fed.Appx. 357 (2010), 2010 WL 2465039 teaches:

The remaining defendants in this lawsuit are the employees of the Louisiana Fifth Circuit Court of Appeal who acted pursuant to the procedures allegedly implemented by the judges. The district court determined correctly that because they were only acting at the express direction of the judges, to assist them in carrying out their judicial functions, those defendants are likewise entitled to absolute judicial immunity with respect to Guccione’s claim for monetary damages. See Mitchell v. McBryde, 944 F.2d 229, 230–31 (5th Cir.1991).

A careful review of the pleadings reveals no allegation that the law clerk’s

complained of actions were done pursuant to established court policy or at the

direction of a judge in aid of judicial functions. Therefore, she is not entitled to

immunity.