Immunity for judges not an end for families

A judge’s ruling granting former judges Mark Ciavarella and Michael Conahan partial immunity from lawsuits related to the juvenile justice scandal will not impact the ability of the alleged victims to recover damages from other defendants in the suits, two attorneys involved with the case said.

How much of an impact the ruling will have on the plaintiffs’ ability to recover from the former judges is far less clear, however, the attorneys agreed.

U.S. District Judge A. Richard Caputo ruled Friday that Ciavarella and Conahan are immune from liability for any decisions they made on the bench.

That includes all the violations of constitutional rights that were allegedly perpetrated by Ciavarella during juvenile delinquency hearings, including denying juveniles their right to an attorney.

Caputo said the judges were not immune from actions they took outside the courtroom, however, which included the closure of the county’s juvenile center and Conahan’s signing of an agreement that guaranteed PA Child Care $1.3 million annually for the placement of juveniles.

The ruling means juveniles can’t recover money from Conahan and Ciavarella for actions the judges took in the courtroom.

But their alleged co-conspirators, including wealthy real estate developer Robert Mericle and attorney Robert Powell, can be held responsible for their roles in the alleged conspiracy to wrongly incarcerate juveniles to increase occupancy, and thus the profit, of the PA Child Care Center. Powell was part owner of the facility, which was built by Mericle.

“When you are part of a conspiracy you don’t have to be the one who slammed the cell door to be held responsible. Everyone who was involved in the conspiracy is 100 percent responsible for the conspiracy,” said Barry Dyller, who represents juveniles in one of the four lawsuits impacted by Caputo’s ruling. John Dean represented Luzerne County, which was also named as a defendant. Caputo issued a separate ruling Friday that essentially clears the county of any liability in the case

Dean agreed the fact the judges are immune doesn’t negate the responsibility of others alleged to have engaged in the conspiracy.

But he said he believes Caputo’s ruling will make it more difficult to prove liability on the part of the alleged co-conspirators.

“The person in the courtroom who allegedly denied the juveniles their right to due process and their right to counsel was the judge. Powell and Mericle did not deny them their right to counsel. They were not in the courtroom, ” Dean said. “It will be a hard argument to make that anybody but the judge denied them those rights.”

Assessing liability for the out-of-court actions taken by the former judges promises to be a far more difficult issue to resolve.

Dyller contends that, even though the judges are immune for their in-court actions, they remain liable for the alleged overall conspiracy to incarcerate juveniles for money.

That’s because that plan was hatched in conversations outside the courtroom, Dyller said.

“Mark Ciavarella is not liable for a particular sentence he imposed, but he is liable for the out-of-court conspiracy in which he engaged,” Dyller said. “When you get together in someone’s living room and say ‘I’ve got a great money making scheme,’ that is not a judicial act.”

Dean said he believes that’s a “creative” interpretation of Caputo’s ruling.

“To have a conspiracy you have to have an underlying constitutional violation,” Dean said. “The actual deprivation of rights occurred in the courtroom. They are immune for any deprivation of rights that occurred in the court room.”

Dyller said the fact the judges are immune from those actions doesn’t preclude the plaintiffs from presenting evidence of the judges’ conduct in support of the conspiracy theory.

“The underlying facts are the facts,” Dyller said. “Ciavarella’s actions are still part of the case, even if he can’t be held liable for them.”

The issue will likely be among a number of pre-trial disputes that will emerge as the case moves forward.

It’s expected that additional motions to dismiss will be filed by the remaining defendants based on other technical, legal issues.

Dyller said he and other attorneys representing the juveniles anticipated they would face many pre-trial challenges and that they would lose the legal argument on some of them.

The important thing is to get at least some claims through the pre-trial stage to get them before a jury.

In this case, the fact that the judges remain as defendants, even if it’s on fewer counts, is a significant victory for the plaintiffs, he said.

“We are where we anticipated we’d be all along. The people who have to compensate these children and their families remain as defendants and the judges themselves remain as defendants,” Dyller said.