Earlier in the year I posted a story about a particularly revolting episode of judicial corruption in Eastern Pennsylvania. I wrote:
Eastern Pennsylvania has a terrible reputation for judicial corruption and venality — the stories one hears from practitioners and others around Philadelphia are truly awful, with bags full of money and all the rest. But a story in the NY Times today breaks new, and more nauseating, ground. Two judges in the Wilkes-Barre area have pleaded guilty to taking kickbacks — $2.6 million worth — from local juvenile detention centers for sentencing young offenders to time in the facility (the facilities were reimbursed by the state on a per-prisoner basis, so the more kids they had, the more money they earned). So dozens and dozens of kids who would ordinarily have expected to get a slap on the wrist — for writing nasty things about their high school principals on Facebook, for starting fights in the playground, that sort of thing — received sentences of several months in the detention facility instead, all, it turns out, to line the pockets of the judges.
Maybe it’s just because I am a parent with two kids of my own, or maybe I’m just a soft-hearted romantic, but to do this to young people for the sake of a few bucks (or 2.6 million bucks, or 260 million bucks) is — well, you pick your own adjective. One has to assume that lives were ruined because of this — 3 months in juvy for a high school kid who doesn’t belong there is a terrible, terrible thing – and I hope these two (for the record, and for the benefit of Internet readers in the 22nd century, and to insure that their names do not disappear from the List of the Wicked, the judges in question were Judge Mark A. Ciavarella Jr., and Judge Michael T. Conahan) get the punishment they so truly deserve. 2009, I hope, won’t give us anything more shameful than this.
Now comes news that the judges are immune from suit arising from any and all of their “judicial acts” in connection with the sentencing of these juveniles. [Stories are here and here; the opinion in the case conferring absolute immunity on the defendant judges (Middle District of PA, Judge Caputo) is here). Judge Caputo's opinion conferring the immunity is thoughtful and well-reasoned; as he puts it:
"Egregious conduct is immune to assure that honest mistakes will be immune. Subjecting judges to a determination of the existence of good faith on a case by case basis is not desirable. It would create chaos and undermine judicial independence. It would eliminate the finality of judgments and destroy public confidence in the judiciary. Every decision by every judge would be subject to attack (in court) on the basis that it was not an honest mistake. Even though almost all erroneous decisions – and history proves this – are honest mistakes, subjecting each decision to judicial scrutiny as to whether it was motivated by good faith, would render the justice system unstable, ineffective and would destroy public confidence in the judiciary. It would turn the justice system upside-down. Imagine the continuum of litigation over decisions to determine whether they were rendered in good faith. Even the decisions that determined they had been rendered in good faith would be subject to attack themselves, and so on. The notion of the stability provided by the finality of judgments would perish. Moreover, it is not as though judicial decisions are not scrutinized. Mistakes are dealt with on appeal, and egregious behavior by judges is subject to prosecution under the criminal law and removal from office. It is readily apparent that the doctrine of judicial immunity, as it has developed and exists today, creates an environment which permits judges to be independent of the other branches of government, the will of the majority, and designing persons; it provides stability through finality; and, it has the confidence of the public. THE FEDERALIST No. 78 (Alexander Hamilton).
Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit."
[The opinion goes on to reject immunity for the second judge involved in the action, because his liability is premised on "non-judicial acts" -- "taking official actions to remove funding from the Luzerne County budget
from the Luzerne County facility, and [exerting] influence to facilitate the construction, expansion, and lease of the [facility from which he was receiving kickbacks."]
I’m no expert on the law of immunity, but it’s surely a troubling result, and I’d be a little surprised if it survives on appeal. It is very difficult for me to believe that a judge who agrees, say, to sentence a defendant to incarceration without parole because he’s sleeping with the defendant’s girlfriend, or who takes a bag full of money to dismiss criminal charges against a defendant, is free from all liability (though that is the gist of Judge Caputo’s opinion). But as I said, I could be wrong about that — very troubling, indeed.
[Thanks to Jeffrey Davidson for the links]
PersonFromPorlock says:
Well, what did you expect? Can you suggest a principle (!) more dear to government than official immunity?
November 28, 2009, 9:31 amBob from Ohio says:
Caputo is just looking out for himself and the rest of the judge guild.
What does letting bribe takers off do to “public confidence in the judiciary”, I wonder?
November 28, 2009, 9:36 amSoronel Haetir says:
What do you expect when the person deciding immunity is writing something that may well apply to the author? Even were the legislature to act it wouldn’t surprise me if judges were to invalidate such a move.
I would hope that taking bribes is simply outside the judicial role. About time that both prosecutors and judges were subject to qualified rather than absolute immunity.
November 28, 2009, 9:39 amEric Rasmusen says:
Very interesting problem, and you’re right that it’s not an easy one. We definitely want the judge to have criminal liability, I think (some people might want to limit it to impeachment) and we want the corrupt cases to be subject to review, so the only question is whether the victim— the losing side— should be able to sue the judge or the government for money damages besides.
What is the case with corrupt policemen? (Section 1983?) Can they be sued personally?
We also have a second-best situation. As the Court says, we’d have a huge amount of meritless litigation harassing judges. I say that is “second-best” because it is the fault of bad policy created by the judiciary itself, which for the past 50 years has encouraged nuisance suits generally. If judges would use their powers to punish lawyers who bring meritless suits, the problem would dwindle. Maybe making judges personally vulnerable to legal harassment and wacko juries would change the judiciary’s mind about whether trial lawyers should be given every freedom to sue corporations.
November 28, 2009, 9:43 amneurodoc says:
A “thoughtful and well-reasoned” opinion though it ignores the fact the “egregious conduct” here was egregious and felonious?! (Sorry, I haven’t read more of the opinion than what is excerpted here. Does it ever discuss the fact that the defrocked, disbarred former judge was convicted of crimes and will be spending a very long time in prison?) What question can there be about whether the conduct in question was the product of “honest mistakes” after that same conduct has resulted in a criminal conviction. Or, “good faith”?
To allow a civil lawsuit after a criminal conviction might “destroy public confidence”? What confidence could remain after the criminal conviction? Perhaps allowing the victims to recover through a lawsuit might restore some public confidence.
“Eliminate the finality of judgments”? Finality of which judgments, the criminal one of the former judge or those he decided?
November 28, 2009, 9:46 amT. Gracchus says:
You should make clear that the issue is immunity to civil suit, not criminal prosecution. There may be other objects for civil recovery, e.g., the juvenile detention centers or owners.
November 28, 2009, 9:50 amDavid Schwartz says:
I can’t see how this rationale could possibly apply after the judge was criminally convicted for the conduct at issue. One can make other arguments that might apply to that specific case, but not these. Honest mistakes can’t result in criminal convictions. Any damage to public confidence is done by the criminal judgment.
November 28, 2009, 9:54 amOff Kilter says:
As Randy Barnett has written about in some detail, this is a consequence of having a monopoly court system. Just as the reason to trust Gimbles is Macys, so the reason to have confidence in a court system is ultimately that, if they no longer deserve it, you can go elsewhere. With a monopoly system, you can vote only with your feet, not your dollars. This is then the result you would expect, where claims of procedural safeguards take precedence over substance, because without competition, procedural safeguards are all you have left to depend on.
November 28, 2009, 10:10 amVasco says:
This whole case just goes to show what a huge travesty the juvenile “justice” system is.
It’s like In re Gault never happened.
November 28, 2009, 10:10 amRicardo says:
I agree with neurodoc and David Schwartz: what is wrong with an exception to absolute immunity that kicks in once a judge receives a criminal conviction (via jury verdict or guilty plea) for conduct on the bench? I don’t see any slippery slope or public policy problems with this.
November 28, 2009, 10:18 amSoronel Haetir says:
One thing to keep in mind, afaik these judges are currently in a no plea condition due to the guilty pleas being rejected. At least I haven’t heard anything about the criminal cases after that.
November 28, 2009, 10:32 amJRL says:
“One has to assume that lives were ruined because of this — 3 months in juvy for a high school kid who doesn’t belong there is a terrible, terrible thing . . .”
Why assume? Do we have any insight on the recidivism rate in this jurisdiction? Just askin’.
November 28, 2009, 10:45 amjnheath says:
JRL:
The assumption does not relate to recidivism. The assumption is that many/most/all of these kids were traumatized, ostracized, had their social lives and family and academics disrupted, etc. How would your married life, your job, self esteem, etc. be affected if the cops grabbed you this afternoon for an unexpected six months in the state pen? If you could put the pieces back together, would you ever be the same?
November 28, 2009, 11:08 amED Maven says:
This decision is absurd. Granting the need to shield judges from unmeritorious claims etc., etc., and to that end providing them with absolute immunity, what is the conceivable justification for conferring civil immunity on judges whose conduct has already been duly adjudicated to be crimninal?
November 28, 2009, 11:13 amOrder of the Coif says:
In the 21st century, no government employee is ever liable for anything.
Lying police regularly hide behind the marvelous cover of “good faith.”
In my state, public defenders can sleep through the trial but cannot, per a Supreme Court decision, be sued for malpractice.
Now Judges can take bribes to ruin lives and the intended victim has no compensation.
Regular lawyers take note, you should get on this train. Oh, that’s where civil Gideon will lead.
November 28, 2009, 11:15 amRoscoe says:
If doctors had to power to make up the rules as to how and when doctors may be sued for malpractice, I am sure they could think up lots of reasons why such suits are detrimental to the public good.
November 28, 2009, 11:17 amjnheath says:
Maybe the hinge point is “judicial acts”. Accepting the kickbacks was not an official act. What if plaintiff makes the nexus between the extrajudicial conduct and the damage, whilst somehow bypassing the official act? Maybe a different area of law could be the basis for the suit — e.g. property or contract law. The judge enriched himself by “selling” the indenture (of sorts) of the plaintiff. Maybe the plaintiffs are entitled to the 2.6m plus punitive damages — not for the trauma which resulted from the offical act, but for the unjust enrichment by the miscreant’s having converted a third parties “services” in an illicit contract. I’m groping, somebody help me out . . .
November 28, 2009, 11:27 amLarryA says:
I can buy civil immunity for sentencing a juvenile to detention. Civil immunity for taking a bribe to do so is obscene.
For instance it kind of puts the shaft to any chance of getting into college, most trade schools, or the military.
November 28, 2009, 11:30 amJardinero1 says:
I and everyone else outside of government can be sued anytime and anyplace. It doesn’t stop me from getting out of bed in the morning, or going to work, or doing my job. The wheels of commerce don’t stop turning because such a threat exists. I don’t even worry about it. I provide my services in the best way I know how.
So I find it absurd that somehow the judges and the police and civil servants won’t be able to do their job if they face the same civil liability in their chosen profession that I and everyone else face everyday. Maybe if they did face civil liability they might be more thoughtful in the execution of their duties. Maybe they might be more consistent in their application of the law. Maybe they might limit, or request to limit their duties to those which they can faithfully carry out.
November 28, 2009, 11:50 amrpt says:
“ER:
Maybe making judges personally vulnerable to legal harassment and wacko juries would change the judiciary’s mind about whether trial lawyers should be given every freedom to sue corporations.”
This will certainly work; fortunately there are no fee-shifting or sanctions provisions in effect now. But make sure in the process that you do not restrict the corporations’ rights to sue everyone else. I wonder who they hire to do the dirty work.
November 28, 2009, 11:52 amdrunkdriver says:
I too agree with neurodoc, after a criminal conviction for taking a kickback, what is the rationale for barring a civil suit?
I do agree however that in most cases judicial immunity is a good idea. Imagine how many suits could be filed by the disgruntled litigant, convicted of a crime or who gets an unwelcome divorce ruling: he could just run to the clerk and sue the judge on baseless claims of being “paid off” or sleeping with his ex, and then presumably be allowed to proceed onward to discovery with such bogus claims. If the public finances the defense of such suits, then you can count on increasing the cost of a court system. If the judge is supposed to defend the suit out of his own pocket, that impacts on who is willing and financially able to be a judge.
November 28, 2009, 11:53 amCornellian says:
The hard part is drawing the line between mistakes, which must be immune from civil suit, and the sort of decision at issue in this case. But it’s not obvious to me why a prior criminal conviction for the same act can’t constitute a suitable line.
November 28, 2009, 11:53 amCornellian says:
As Randy Barnett has written about in some detail, this is a consequence of having a monopoly court system.
Is he proposing competing court systems in which a defendant gets to choose the one that will give him the lightest sentence?
November 28, 2009, 11:54 amAnderson says:
I think we had more or less the same issue re: the Chicago prosecutors in the SCOTUS. Tho I think maybe the SOL had run re: criminal prosecution of them.
November 28, 2009, 11:58 amtroll_dc2 says:
The decision, alas, is correct.
November 28, 2009, 12:15 pmOren says:
(1) Gimbels was liquidated before I knew how to read.
(2) Ever since the Federal Arbitration Act, parties to a contract can make a binding agreement to arbitrate.
November 28, 2009, 12:50 pmA. Criminal says:
“Egregious conduct is immune to assure that honest mistakes will be immune.”
As a criminal, I plan on using that line in my next defense.
November 28, 2009, 2:05 pmDavid Nieporent says:
Police are only entitled to qualified immunity; it’s not clear why prosecutors and judges should be entitled to absolute immunity.
That having been said, the people above talking about judges “convicted of crimes” are wrong; there have been no convictions. The defendants offered guilty pleas, but withdrew those pleas when the judge rejected the proposed sentence.
November 28, 2009, 2:41 pmjcm says:
A old woman went to Cambises, the ruling monster of Persia,. She complained about a corrupt judge.He ordered that the judge must be put to death and his skin ripped off. It was used to cover a chair. He appointed the judge´s son as judge and ordered to use the skin covered chair. And told him remember where are you sitting when doing justice.
November 28, 2009, 2:41 pmIn continental Europe the norm is that you can suit the state to recover damages for judicial mistake and denial of justice
Richard Aubrey says:
In a sense, suits are a kind of social pressure valve. The populace gets to see that wrongdoers get their comeuppance–sometimes, anyway. It relieves frustration and the sense of powerlessness.
November 28, 2009, 3:27 pmWeld down that valve and the pressure will build and blow someplace else.
IMO, these judges should not be immune to outlawry, in the old sense. Just hope nobody gets hurt in the rush.
Lior says:
1. It’s always amusing to see judges and prosecutors insist that “absolute immunity” is necessary to avoid them being harassed by meritless suits when these selfsame prosecutors freely use the legal system to harass others (e.g. doctors who prescribe pain medication) and these judges allow the legal system to be used to harass anyone else.
2. All these “immunities” are entirely manufactured by the judges themselves. For example, the opinion cites no federal statutory law regarding this immunity — the only citations are to Supreme Court cases, and to the legal principle that “the King can do no wrong”, an amusing idea for the post-revolutionary States to adhere to.
It’s clear that the common-law system recognizes judicially-written law — and that the common law provides courts with the freedom to give their favourite litigants the boon of immunity. In this light I find it quite telling that when writing the law judges haven’t decided to confer “absolute immunity” on doctors, teachers, or private contractors.
3. To David Nieporent: “qualified” immunity is nearly as egregious as “absolute” immunity. Trained police officers should be held to a standard at least as high as ordinary citizens. If private people without any training in law can be found civilly liable without the Supreme Court first ruling that similar conduct was tortious then surely police officers (who have some legal training and unlimited access to free expert legal advice) can be expected to follow the law too.
November 28, 2009, 3:27 pmLiz Borden says:
Seems the decision is right, and kudos to the court for getting it right, despite the nearly irresistible urge to do otherwise with such a fact pattern.
To Lior: Common-law is valid and important in our society. And any common-law creations can easily be dispensed with by legislatures.
I also concur with the opinions that a criminal conviction seems a nice bright-line test for vitiating judicial immunity. Perhaps a second level of approval, such as an application to the governor to have a final say after such a conviction before the immunity is officially lifted, would be an appropriate safeguard.
November 28, 2009, 4:03 pmOren says:
You don’t seriously think police officers and private citizens come across these scenarios at the same rate, do you? Your average Joe is basically never involved in altercations in which he has the legal authority to hold someone by physical force — that alone ought to suggest that these are wildly different matters.
November 28, 2009, 4:43 pmJudith says:
While I like the idea of saying “once a conduct has been determined to be criminal beyond a reasonable doubt, it is no longer immune to civil suit” that puts all the power in the hands of the prosecutors. What if they choose not to prosecute? Then the civilians are SOL? In a community where there is a real chance of many multi-million suits, would the prosecutor be strongly incented by this to NOT bring a criminal case against the judges? The budget pot, after all, is a shared one. And exposing the budget to potentially huge outlays would be a difficult decision.
November 28, 2009, 5:59 pmOren says:
Judith, the suit would be against the judge as a person, not the county/State so it would have no effect on the DA’s budget.
November 28, 2009, 6:11 pmgeorge weiss says:
police in the heat of the moment=qualified immunity..even when not intentional criminal conduct.
prosecutors and judges acting in premeditation in air conditioned offices=absolute-even when it IS intentional criminal conduct.
this all makes so much sense and creates lots of confidence in the system!
November 28, 2009, 6:41 pmPersonFromPorlock says:
OK, so here’s a fun class project: design a referendum question (because it sure isn’t going to get past a legislature) that can be passed at the state level which does away with as much official immunity as possible.
November 28, 2009, 6:49 pmtheobromophile says:
To add to other comments above: the lack of recourse against these judges will do nothing but undermine one’s faith in the judiciary. Having judges defend each other – even when the conduct is this egregious – does nothing but undermine respect for those in robes.
Given that judges must ultimately sign off on any civil suits against one of their own profession, there is hardly the risk of a slippery slope here: they can easily throw out cases on summary judgment. It’s not as if the plaintiff’s tort bar tries judicial misconduct cases.
November 28, 2009, 7:02 pmneurodoc says:
Thank you for that clarification regarding the status of the criminal cases. I had thought based on what I read in the past that those two malefactors had been sentenced to lengthy terms in prison, but then I wondered why Judge Caputo said nothing about criminal “convictions.”
Dennis v Sparks dealt with the assertion of a 1983 claim against a judge who allegedly took a bribe to grant an injunction, which was later held to have been illegally granted. The Supremes said that judicial immunity shielded him from liability, while those who conspired could be sued for acting under color of law through the judge, in effect their criminal instrument, to deprive the plaintiff of his civil rights. I wonder if the judge in Dennis was ever criminally prosecuted for bribe-taking, and whether the Supremes might have held that judicial immunity was not so absolute as to shield a judge whose judicial acts were in fact criminal conduct if in the case before them the judge had already been convicted or was under indictment. Why the Court didn’t extend itself just a bit to answer what seems to me such an obvious and important question (i.e., the immunity exists not just for allegedly criminal conduct on the bench, but even for proven criminal conduct on the bench), I don’t know. Perhaps the Circuit Court of Appeals will say the immunity is as near to absolute as one can get, but not absolutely absolute when it is settled that the judicial conduct in question was frankly criminal.
It is said that bad facts make for bad law. If that is true, and I don’t think it in doubt as a general rule, then I think it must follow as a corollary proposition that good facts can make for, or promote, an opposite result, which presumably will be “good” law. If any set of facts are up to it, the case of the PA judges should be the one to establish that judicial conduct which is criminal is not entitled to absolute immunity from civil liability. I wouldn’t bet the farm, though, that in the end absolute immunity for judges will not continue to be absolute, notwithstanding that their conduct may go past “egregious” all the way to “criminal.”
November 28, 2009, 8:25 pmmariner says:
Off Kilter:
When people perceive that the judicial system is corrupt they will eventually vote with their weapons.
November 28, 2009, 8:27 pmneurodoc says:
Is that meant as a statement of universal application or one with particularity to our present day judicial system in the United States? Do you view our judicial system as a “corrupt” one? Are there other countries with judicial systems free of any trace of taint?
Is there a plausible alternative to a “monopoly” judicial system, and if there is, what would it look like? Two or more Supreme Courts? What does it mean with respect to our judiciary system and the rest of our government, if they are to be seen as making up a “monopoly,” to say “you can vote only with your feet, not your dollars”?
November 28, 2009, 9:05 pmAustinElliott says:
None of the posts have yet mentioned that civil liability is not necessary to compensate crime victims. Upon conviction, the CRIMINAL court can order restitution to the victim, at least in my state (Texas). I did this dozens of times, and it is a lot more powerful than a mere civil judgment. You have a condition of probation that restitution be made, and upon default, proceedings to revoke and return to incarceration are initiated.
November 28, 2009, 10:47 pmArthurKirkland says:
When people get tired of threats about use of weapons, they will put the blowhards in jail.
November 28, 2009, 11:21 pmcubanbob says:
Please tell me in what jurisdiction police officers have absolute immunity? And how often do prosecutors and judges come across those scenarios you refer to that police officers do?
November 28, 2009, 11:40 pmneurodoc says:
Interesting but: i) can criminal courts order restitution to victims in all jurisdictions, including PA?; ii) if defendant is not going to get probation under any circumstances, but is instead headed off to prison for a long time, is the court order enforceable in the same way that a civil award of damages can be enforced?; finally, and perhaps most importantly, iii) any reason to believe that the same absolute immunity that Caputo says shields a corrupt judge from civil liability would not keep a convicted judge of having to make restitution if ordered to do so by a sentencing judge? (Any cases in Texas or elsewhere in which a judge convicted of a crime in the performance of their official duties had to make restitution to their victim? I doubt it, since the appellees didn’t bring any to Caputo’s attention.)
You say you “did this dozens of times,” was that as a prosecutor or as an attorney representative of crime victims? Was it necessary to prove up the victim’s damages in the same way they would have had to do in a civil lawsuit?
November 29, 2009, 1:01 amneurodoc says:
You aren’t saying, are you, that there cannot be an independent suit against the county/State?
If the PA plaintiffs can’t go after the county or state, then they may be out of luck even if it is eventually ruled that the judges should not enjoy absolute immunity for any award of damages for criminal conduct in their judicial roles. It is not improbable that the judges’ assets are substantially less than enough to satisfy any judgments against them. (Note that they were pro se on the appeal.)
November 29, 2009, 1:10 amneurodoc says:
While legislators can impeach judges, I seriously doubt it would past constitutional muster to allow the executive to decide whether “immunity is officially lifted” in the case of a judge convicted of a crime.
November 29, 2009, 1:15 am11-B/2O.B4 says:
Just to be clear here for the layman (that’s me). If I read this correctly, a judge can never, ever, ever be held civilly liable for anything he does from the bench? No matter what he does within the (I assume yet-to-be-fully-determined) limitations of his job, his victims can never seek personal redress?
If this is the case, that’s some comic-book supervillain power right there.
November 29, 2009, 1:20 amWill says:
I can understand raising the bar for such cases but to raise it above that of criminal conviction is insanity.
November 29, 2009, 2:02 amneurodoc says:
Don’t you think that the prospect of impeachment and/or jail time operates as something of a check on “supervillain power”?
November 29, 2009, 2:06 amDavid Schwartz says:
Well, and also the judicial system has internal checks and balances. A judge has limited discretion and cannot act outside that discretion or the judicial system should correct him. Presumably, all actions within a judge’s discretion are reasonable. So there’s supposed to be sufficient internal checks to prevent one judge from being a supervillain.
November 29, 2009, 2:28 amJim Lindgren says:
When I researched the issue over 2 decades ago, my conclusion was that a judge can be convicted for AGREEING to take a kickback and for TAKING a kickback, but NOT for DECIDING or SENTENCING unfairly. In immunity cases involving legislators or judges, some courts would not allow the jury to hear how the judge or legislator actually voted or ruled, others would allow that evidence. But the crime is the kickback or the agreement to take it, not the corrupt decision.
I think the decision is wrong.
November 29, 2009, 3:09 amGabriel McCall says:
My concern would be that if the courts provide no avenue for victims of a criminal judge to seek redress, some of those victims may pursue a more informal sort of justice. Given a choice between compromising the judges’ absolute immunity, or tar-and-feather squads, I think the former is the lesser evil.
November 29, 2009, 4:23 amRicardo says:
Interesting. If that’s the case in Pennsylvania, then I’m wondering why you still think the decision is wrong (or is it that you find the decision morally wrong but not legally wrong?). I had assumed that since the judge’s sentencing decisions were part of a criminal conspiracy they were inherently illegal and illegitimate. But if the act of determining a sentence based on kickbacks is not actually illegal, that makes the case for lifting absolute immunity much harder.
November 29, 2009, 4:44 amEric Rasmusen says:
AustinElliot noted that in Texas, at least, a judge in a criminal case can order restitution to the victim. That’s very interesting.
Does it happen elsewhere?
In Texas, is it standard, or unusual?
Does the prosecutor have to make a motion for restitution, or is either automatically a part of the penalty or judge-initiated?
Can “restitution” include money damages for non-monetary harm, e.g. pain and suffering, lost wages for being in jail wrongly, lost reputation?
November 29, 2009, 9:31 amSteve2 says:
Impeachment isn’t a check on anything. It happens too rarely to matter, and its consequences are too slap-on-the-wrist to matter. There’ve been impeached judges serving in Congress, and we’re supposed to treat impeachment as an actual punishment?
Pain and fear are the only checks on malfeasance. If impeachment were commonplace for corruption by public officials, and it carried an automatic sentence of public burning, then you could call fairly call it a check.
November 29, 2009, 10:05 ambyomtov says:
Guild protection at work.
This is simple. If I grab people and lock them up just to make money I have a whole host of legal problems, including being civilly liable (though that’s obviously far from the top of the list).
Maybe the bar association can be persuaded to write these judges a letter saying, “Shame on you,” or something.
November 29, 2009, 10:49 amShelbyC says:
I’d imagine the legislature could retroactively lift the immunity, if it chose, no?
November 29, 2009, 10:57 amShelbyC says:
no?
November 29, 2009, 10:59 amneurodoc says:
“impeachment and/or jail time.” How about the second as a deterent to villainy?
If a judge took a bag full of money to dismiss criminal charges against a defendant, to whom might they be civilly liable absent absolute immunity for what they may do in their official capacity as a judge? Wouldn’t the “victim” be society at large rather than any identifiable individual, unless conviction of the defendant would have set up a lawsuit against them by their victim?
November 29, 2009, 11:19 amneurodoc says:
I don’t know whether or not a legislature could “lift the immunity” prospectively and without particularity to any individuals, but I very much doubt they could do so rectroactively.
Where do privileges and immunities come from? Some privileges are creations of common law, some are created by statutory enactment and vary state to state. Are there privileges that state courts must recognize, e.g., attorney-client privilege, because they are necessary guarantees of rights established by the Constitution? What about immunities? If Congress thought the Supreme Court has gone too far with its decisions on absolute immunity for judges acting in their official capacities, could Congress make it a qualified immunity (e.g., immunity unless convicted of a crime) or not within its power to do so? I don’t know, but maybe someone who knows will say.
November 29, 2009, 11:35 amreadery says:
An unfortunate consequence of overfederalization is that the judges are being prosecuted under laws which are designed to focus on the relatively minor effect their conduct had on federal taxation and spending, and completely ignore their effect either on Pennsylvania’s children or its system of justice.
When federal enforcement overextends laws originated in limited powers while state enforcement of general powers atrophies, one consequence is that minor-seeming crimes can suddenly get treated as major ones.
But another consequence, as here, is that major crimes can get treated as relatively minor ones.
November 29, 2009, 11:58 amDaily Pundit » The Law Is A Nutjob says:
[...] The Volokh Conspiracy » Blog Archive » Are Judges Really Immune when Taking Kickbacks? [...]
November 29, 2009, 12:07 pmEinhverfr says:
I didn’t know that accepting bribes was a “judicial act.” At the same time, I am not entirely sure what the solution is. It will be interesting to watch on appeal.
Drawing the line at action after a conviction seems good on paper but are there any other areas of law where suits can suddenly go ahead after such a conviction? Or would that pose other problems?
November 29, 2009, 12:38 pmpublic_defender says:
According the article, the immunity is not complete. A lot of the actions of the judges are not covered by immunity. Probably enough to make them liable for more than they could pay.
Also, AustinElliott is probably right about the power of criminal restitution. Yeah, if the judges are headed to prison, they might not be able to pay, but 1) the victims would find it less difficult to collect than from a simple civil judgment because there are a lot fewer defenses against criminal restitution judgments; the judge probably had other assets, including a pension, which might be subject to judgment.
That said, I bet if the judges are married, I bet we’d discover that their wives now own everything and they own nothing. There are probably ways to attack those kind of transfers, but I haven’t a clue as to how that would sort out.
That leads to another question: Insurance. My guess is that the victims would love to win on a claim that the judges might be insured for. Generally, your insurance doesn’t cover intentional torts, but smart victims’ lawyers know how to plead a case to try to get it covered.
November 29, 2009, 2:18 pmsitzpinkler says:
That seems right to me.
November 29, 2009, 2:25 pmsitzpinkler says:
The sentence doesn’t strike me as relevant to the present issues.
November 29, 2009, 2:32 pmR. Nebblesworth says:
I didn’t know that accepting bribes was a “judicial act.”
Quoted for truth. In what universe are bribes and kickbacks judicial acts stamped with approval by the law? Not this one, I thought, but…
November 29, 2009, 10:00 pmSpartan79 says:
If this travesty of an opinion stands, it will engender, at least in me, a revulsion with our legal system which will lend an entirely new dimension to the phrase “contempt of court”.
November 29, 2009, 11:58 pmgeorge weiss says:
public defender-its not likely there is a way to plead these claims in a way the judges would be covered for. its pretty clear this was all intentional.
and yes not all the acts of all the judges were immune. and yes criminal restitution is available to the harmed outside civil system.
as to the transfers from the judges to wife’s (or anyone else) with intention of declaring bankruptcy and avoiding an impeding judgment are clearly avoidable by the us trustee in bankruptcy under the fraudulent transfers provisions. it also may be a crime in and of itself-so i doubt they have done this unless they want to now add to their criminal liability. (surprised a public defender wouldn’t know more about bankruptcy)
November 30, 2009, 1:01 amThe Volokh Conspiracy » Blog Archive » More judicial corruption in S.E. PA: says:
[...] a third local judge, and the 20th person overall, has been snagged in a corruption inquiry. I’ve blogged a number of times about the two other judges that will (hopefully) spend a good deal of time in prison on the charge [...]
December 4, 2009, 1:44 pmreview says:
FEDERAL JUDGE SAYS IF THEY DID NOT PROMISE OR SIGN ANYTHING KICKBACKS ARE OK??? WHICH IS NOT TRUE BY THE WAY.
Turning next to relators’ claims based on alleged violations of the Anti-Kickback Statute, the court concluded relators failed to allege “that United Health certified compliance with the Anti-Kickback Act, nor did they allege that such compliance was relevant to the Government’s funding decisions.” The court then declined to exercise supplemental jurisdiction over relators’ state law claims and refused to grant relators leave to amend.
MEDICARE FRAUD, MEDICADE FRAUD, AND KICKBACKS AND BRIBES BUSINESS AS USUAL,INSIDER INFORMATION GIVEN. 9B BS ONE THING BUT WHAT ABOUT YOUR “HANDS OFF POLICY” BY THE DOJ AND CMS AND HHS, AND WHY NO INVESTAGATIONS OR AUDITS TO CONFIRM OR HELP? “SELF DISCLOSURE BY CARRIER ANOTHER JOKE”.
WHAT ABOUT “TAXPAYERS TO PREVENT AND STOP AND PREVENT FRAUD FOR MEDICARE AND MEDICADE” WHAT ABOUT WILLIS AND WILKINS BEING FIRED FOR NOT WANTING TO BREAK THE HEALTH FRAUD LAWS?
NJ CEPA CLAIM NOW ON FILE…..FALSE CLAIM UNDER APPEAL AND FILED….. WHERE WAS ANY HELP FROM YOUR DEPARTMENT?
The U.S. District Court for the District of New Jersey dismissed May 13 a qui tam action alleging violations of the False Claims Act (FCA) by United Health Group and its subsidiaries. According to the court, the complaint failed to state a claim upon which relief could be granted under the FCA. Relator Charles Wilkins began employment with United Health Group and its subsidiary AmeriChoice in October 2007 as a sales representative. Relator Darryl Willis began employment with United Health Group and AmeriChoice in 2007 as the general manager for Medicare/Medicaid marketing and sales.
In their qui tam complaint, relators allege 11 violations of Medicare and Medicaid regulations. The United States declined to intervene in the case and the relators filed an amended complaint that stated one federal count—violation of 31 U.S.C. § 3729(a)(1)-(3)—and nine state law counts. United Health moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing relators failed to plead the elements of a “false certification” claim, they failed to plead any anti-kickback violations, and failed to adequately plead a conspiracy. Relators alleged that because United Health entered into a contract expressly certifying that it agreed with all “terms and conditions of payment,” they made a false claim when they submitted claims despite any one of the 11 purported regulatory violations alleged in the amended complaint. Rejecting relators’ express false certification claim, the court found “[not once in the Amended Complaint have Relators identified even a single claim for payment to the Government.”The court also held relators’ implied false certification claim failed. According to the court, relators argued that because United Health agreed to comply with all CMS regulations when it contracted to become a prescription drug plan sponsor, and because at times it was in violation of some regulations, it therefore committed fraud each time it submitted a claim for payment. The court found such a theory of liability overly broad. “If Relators' theory were correct, the FCA would become a federal tort fountain, flowing claims for every trivial violation of Medicare/Medicaid regulations,” the court said. Relators next argued that under the recently enacted Fraud Enforcement and Recovery Act of 2009 (FERA) a relator need only show whether compliance with regulations would have a tendency to influence the government's payment decision. While that argument is true, the court reasoned, “Relators must still show a claim . . . and [t]hey have not done so.” Turning next to relators’ claims based on alleged violations of the Anti-Kickback Statute, the court concluded relators failed to allege “that United Health certified compliance with the Anti-Kickback Act, nor did they allege that such compliance was relevant to the Government’s funding decisions.” The court then declined to exercise supplemental jurisdiction over relators’ state law claims and refused to grant relators leave to amend.
United States ex rel. Wilkins v. United Health Grp. Inc., No. 08-3425 (D.N.J. May 13, 2010).
FCA claim alleging aggressive marketing tactics by health plan provider dismissed
Publication: Health Law Week
Date: Friday, June 4 2010
The U.S. District Court for the District of New Jersey dismissed a qui tam action brought by two former employees of healthcare plan providers alleging violations of the False Claims Act (FCA) arising from excessively aggressive marketing methods. United Health Group Inc., a provider of access to healthcare services, had as its subsidiaries AmeriChoice and AmeriChoice of New Jersey, which each offered Medicare Advantage plans. Charles Wilkins and Darryl Willis (the relators), who were each employed by United Health Group and AmeriChoice, initiated a qui tam claim against United and its two subsidiaries under the FCA alleging numerous violations of Medicare and Medicaid regulations governing administration of the Medicare Advantage plans. The complaint alleged that the defendants engaged in unauthorized and aggressive sales methods in marketing the plans — including the provision of illegal cash payments to providers to induce them to change beneficiaries to AmeriChoice and the provision of illegal kickbacks to doctors for obtaining the names of patients they could call and approach. The defendants moved to dismiss.
The district court concluded that the complaint failed to identify a single instance in which the defendants submitted a false claim to the government for payment as required to prosecute a qui tam claim as relators under the FCA. Under applicable federal appellate court precedent, the absence of such an allegation was fatal to the relator’s false certification claim. The relators’ theory of liability at base was that because United Health agreed that it would comply with all Centers for Medicare and Medicaid Services regulations, and because it was at times in violation of some regulations, it committed fraud each time it submitted a claim for payment. The district court concluded that this contention confused the conditions of participation in a Medicare or Medicaid program with the conditions of payment, and would open the door to a flood of tort claims of a type not contemplated by the FCA. Moreover, the complaint failed to allege that the violation of any regulation was actually relevant to any funding decision. As a result, the complaint failed to state a claim on which relief could be granted and, accordingly, the defendants’ motion to dismiss was granted.
Source: Health Law Week, 06/04/2010
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July 31, 2010, 7:18 am