Judge flap: Who is liable?

WILKES-BARRE – Who should be held responsible for the actions of two former county judges that allegedly led to the wholesale deprivation of constitutional rights of juveniles in Luzerne County Court?

Not the judges, the former jurists argue in court papers. The doctrine of judicial immunity shields them from any liability in the case, no matter how egregious their alleged conduct.

Not the county commissioners, attorneys for the county argue. They were powerless to control the actions of the judges, Mark Ciavarella and Michael Conahan, and therefore are not responsible for any harm to the juveniles.

And not Dr. Frank Vita, the psychologist who provided evaluations used to determine a child’s placement, his attorney argued. He was merely acting upon a court order, thus he, too, is judicially immune.

That was the crux of legal arguments presented Wednesday during a nearly four-hour hearing before U.S. District Judge A. Richard Caputo.

Caputo must decide whether several key defendants, including the judges and Vita, should be dismissed from two federal lawsuits filed on behalf of thousands of juveniles affected by the judicial scandal that also led to corruption charges against Conahan and Ciavarella.

More than two dozen attorneys and their staff crowded into the federal courtroom in Wilkes-Barre for the hearing. Ciavarella, who is representing himself, attended the hearing, but opted not to present any argument, relying on a legal brief he previously filed. Conahan did not to attend and was not represented by any attorney.

The key issue for Conahan, Ciavarella and Vita hinges on just how far the doctrine of judicial immunity should be stretched in protecting judges – and those who carry out their orders – against lawsuits that result from rulings they make on the bench.

For the county, the issue is whether the judges’ actions were part of their judicial duties, or if they resulted from decisions made outside the courtroom. The county could escape liability if Caputo rules their actions were judicial.

Marsha Levick of the Juvenile Law Center, one of the attorneys representing the juveniles, acknowledged that the doctrine of judicial immunity provides judges broad protection against suits for decisions they make on the bench.

But Levick said the doctrine is meant to protect judges from liability for the honest discharge of their duties. The actions of Ciavarella and Conahan were anything but honest, she said.

In Ciavarella’s case, she said, that conduct included routinely denying children their right to counsel and pressuring probation officials to recommend detention instead of probation – all to ensure two juvenile centers owned by his one-time friend, attorney Robert Powell, remained filled. Powell is alleged to have then paid kickbacks to Ciavarella and Conahan.

She called upon Caputo to take a stand and rule that the doctrine cannot be used to protect rogue jurists from such egregious conduct.

“Ciavarella made his own rules. He might as well have set up a courtroom in his garage and put on a black robe. He was acting outside the Constitution,” Levick said.

Vita, Conahan’s brother-in-law, also contends he is immune from liability because he was merely carrying out the orders of Ciavarella when he prepared evaluations the judge used to determine a child’s placement.

William Caroselli, another of the plaintiff’s attorneys, argued Vita lost that immunity by engaging in a scheme, concocted outside the courtroom, to intentionally delay completing those evaluations. That ensured the juveniles stayed in the juvenile centers longer, increasing profits for the judges and Powell.

David Senoff, who is also representing the juveniles, advanced a similar theory in fighting the county’s attempt to avoid liability in the case.

Senoff maintains commissioners acted as a “bridge” that allowed the judges to carry out their scheme by acquiescing to decisions Conahan made, including closing the county-run juvenile center that paved the way for the PA Child Care center owned by Powell.

The commissioners merely “rubber stamped” Conahan’s actions, Senoff said. Had they not done so, “this entire scheme would have fallen apart,” Senoff said.

Timothy Myers, attorney for the county, maintains the county is an innocent party that has been “caught in the middle” of the suit. Conahan and Ciavarella were state employees, Myers said, and commissioners had no authority to control the judges’ actions.

“They could not say to Judge Conahan, ‘No, you can’t shut that facility down,’ ” Myers said. “A judge can tell a county or municipality what they can do, but they can’t tell a judge what to do.”

Commissioners also had no way of knowing of the scheme Conahan and Ciavarella are alleged to have concocted to benefit themselves financially, Myers said.

Caputo acknowledged that argument during the hearing, noting that, at the time the PA Child Care center was under construction it appeared to be a “nice” new facility.

“All they knew was a facility was being built and a lease was entered into,” Caputo said. “What is nefarious about that on the part of the commissioners?”

Senoff countered that commissioners should have known something was amiss because Judge Chester Muroski raised a “red flag” in 2005 when he noted placement costs for juveniles had skyrocketed.

“Despite the fact that Judge Muroski put the commissioners on notice he had concerns … they did nothing,” Senoff said. “Even if the county commissioners were, by your honor’s word, ‘innocent,’ they were recklessly indifferent,” Senoff said.

Caputo also is considering a motion filed by the defendants to stay the civil suit pending the resolution of a case before the state Supreme Court, which is considering whether to vacate the convictions of all juveniles who appeared before Ciavarella from 2003 to 2008.