Even if Trial
Judge Met Witness Ex Parte Shannon P. Duffy The Legal Intelligencer
A lawyer who was convicted of malicious loitering but later
cleared by an appellate court cannot sue the trial judge for violation of his
civil rights -- even if the trial judge met with a witness outside the trial and
questioned him on his own -- because such an act does not pierce the absolute
immunity judges enjoy, a federal appeals court has ruled.
In Serra v.
Salus, a unanimous three-judge panel of the 3rd U.S. Circuit Court of
Appeals upheld a decision by U.S. District Judge Stewart Dalzell that dismissed
attorney Marc D. Serra's lawsuit in its entirety.
Dalzell, in a December
2000 opinion, found that there are only two situations in which judges lose
immunity: when they are performing a non-judicial act or when they act "in the
complete absence of all jurisdiction."
Dalzell found that even if
Montgomery County Judge Samuel D. Salus had questioned a witness ex parte, he
did not lose his immunity because it was still a judicial act, and he clearly
had jurisdiction over the criminal case.
Serra, a New Jersey lawyer who
is also admitted to the Pennsylvania bar, was arrested on the campus of Bryn
Mawr College in the early morning of October 3, 1991, on charges of defiant
trespass, disorderly conduct and malicious loitering.
According to court
papers, the Lower Merion Township police were responding to a complaint from a
student who said that a man was looking in her dormitory window.
defiant-trespass charge was dismissed at a preliminary hearing when Serra argued
that Bryn Mawr College "is not off-limits to the public." But he faced trial for
the two remaining charges.
In August 1992, Salus conducted a one-day
bench trial. But after the close of testimony, Serra claimed, Salus and his wife
visited Bryn Mawr's campus and met privately with Steven Heath, the director of
public safety for the college, who had been a witness for the commonwealth
earlier that day.
The next morning, on September 1, 1992, Salus found
Serra guilty of the malicious-loitering charge only. Serra was sentenced to one
year of probation and 40 hours of community service and was fined $500.
But Serra appealed, and, in February 1994, the Pennsylvania Superior
Court vacated the judgment on the ground of insufficient evidence to support a
verdict of malicious loitering.
Serra then filed a civil suit in
Montgomery County, alleging malicious prosecution by Bryn Mawr and the student
who made the initial complaint.
The conviction, Serra said, resulted in
his being fired from his law firm and effectively losing his legal career in
He claimed that he learned in discovery that the student
who initially phoned Bryn Mawr's public safety department never had the
opportunity to identify him; that the Lower Merion, Pa., police did not
participate in the decision to prosecute him; that the college's public safety
department was under "severe criticism" from students at the time of his arrest
for its alleged inability to respond to numerous, serious incidents on campus;
and that Heath, the director of public safety (and the same man who met with
Salus), had been particularly criticized.
Serra claimed that he was
never able to take depositions from either Heath or Salus and that his suit was
dismissed by visiting Judge Oscar S. Bortner, who simply adopted the college's
brief as his opinion -- without even reading Serra's brief.
appealed Bortner's decision to the Superior Court but also, acting as his own
lawyer, filed a federal civil rights suit against the college, Salus, Bortner,
Montgomery County and five court workers.
Dalzell has dismissed Serra's
suit, granting dismissal motions from all the defendants.
Now the 3rd
Circuit has upheld Dalzell's decision, finding that Salus was entitled to
absolute judicial immunity.
In an unsigned per curiam opinion, Circuit
Judges Maryanne Trump Barry, Leonard I. Garth and Robert E. Cowen said the U.S.
Supreme Court had held that allegations of ex parte proceedings are not enough
to show that a judge was not acting within his lawful jurisdiction.
9th Circuit has gone even further, the panel said, by holding that even an
alleged conspiracy between a judge and a prosecutor to predetermine the outcome
of a case is "clearly improper" but "does not pierce the immunity extended to
judges and prosecutors."
The logic of the 9th Circuit's decision in
Ashelman v. Pope is also fatal to Serra's claims against Salus, the 3rd
Circuit panel said, because "if such a conspiracy does not pierce judicial
immunity, neither do the acts alleged by Serra."
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"..it does not require a majority to prevail, but
rather an irate, tireless minority keen to set brush fires in people's minds.."
- Samuel Adams
"There are a thousand hacking at the branches of evil
to one who is striking at the
-- Henry David Thoreau
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