The Volokh Conspiracy

The broader context, from the dissent in In re Michels (N.Y. Comm. on Jud. Conduct Nov. 17, 2011):

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

The decision involves an interesting and difficult question of the permissible scope of restrictions on misleading candidate speech in judicial campaigns; those interested in the subject should check it out.

This question is part of the general matter of the First Amendment rights of elected judges who are required to be political and yet expected to be in certain ways apolitical; In re Young (N.Y. Comm’n on Judicial Conduct Oct. 7, 2011) has a long discussion in a concurrence that says New York’s elected trial courts judges do have a First Amendment right to engage in such political activity, and a brief statement in the majority opinion condemning such behavior.

That’s what happened in In re Kendall (V.I. Oct. 12, 2011); here’s the offending opinion by the trial judge. The criminal contempt finding is also partly based on the trial judge’s decision to recuse himself from the case, which the higher court said was based on the judge’s desire to avoid following the higher court’s orders rather than on a genuine sense that he had some bias that would justify recusal. The sentencing hearing will come later.

I recently came across a new Fourth Circuit decision on a very interesting legal question addressed in an unpublished decision. In United States v. Makwana, the Fourth Circuit considered the proper interpretation of one of the provisions of the United States Sentencing Guidelines — §2B1.1(b)(14)(B)(i) , which gives a sentencing enhancement for an offense that substantially jeopardized the safety and soundness of a financial institution — to a hacker who had programmed malicious code into a Fannie Mae computer and was caught before the code was executed. As far as I know, there was no caselaw on this question at all; this case is the first in which the the issue has arisen. In reading over the opinion, I was struck by a sense of deja vu: Here was a Fourth Circuit opinion on a novel and interesting question of law, and yet the judges had for some reason decided to issue the opinion as an “unpublished” decision — that is, a decision that is not binding precedent in the circuit. I’ve encountered this often over the years. The Fourth Circuit seems particularly reluctant to issue published opinions.

I decided to look for some real numbers, and I found this chart on the rates of unpublished opinions by circuits from 9/2009 to 9/2010. Here are the numbers listed from the highest percentage of unpublished decisions to the lowest:

Circuit/Percentage of Opinions that are Unpublished
4th Circuit/ 93.0%
3rd Circuit/ 89.8%
11th Circuit/ 89.6%
2nd Circuit/ 88.3%
5th Circuit/ 87.4%
9th Circuit/ 86.9%
6th Circuit/ 83.6%
10th Circuit/ 77.5%
8th Circuit/ 71.8%
1st Circuit/ 65.1%
DC Circuit/ 62.3%
7th Circuit/ 59.8%

According to the chart, the Fourth Circuit is the least likely to issue published opinions. Last year, only 7% of 4th Circuit opinions were published.

The obvious question is, why do different circuits issue published opinions at such different rates? I gather that much of the reason is docket size. Published opinions take more time, so courts with smaller dockets should have more time to publish. Indeed, the DC Circuit and 1st Circuits have among the high publication rates but also have the the two smallest dockets, while the circuits with the lowest publication rates tend to have the highest number of opinions issued per judge.

Some of the reason may also just be circuit culture, or even just the influence of one or two judges. For example, I’ve often wondered if the Seventh Circuit issues so many published opinions on relatively trivial legal issues just to give Judge Posner a chance to ruminate in the F.3d about issues suggested (although not actually litigated) in the cases he decides.

Either way, it does seem to me that the Fourth Circuit is a bit different from the rest. I often come across unpublished Fourth Circuit opinions that should be published because they concern important questions, weigh in on circuit splits, and the like.

As co-blogger Eugene Volokh notes, the Oklahoma Judicial Ethics Advisory Panel recently issued an opinion holding that it is unethical for judges to be Facebook “friends” with lawyers who appear before them. Back in 2009, I criticized a similar opinion issued by the Florida Judicial Ethics Committee:

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all…..

The problem goes deeper than that, however. As far as I know, both Florida and most other states don’t forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned….. But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them….. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.

“It is often surprising, disarming and, when delivered with precision, highly effective.” So writes Chief Judge Alex Kozinski, in an order dismissing a complaint of judicial misconduct against (apparently) Magistrate Judge Edward Chen. Here’s the full order:

A pro se litigant charges that a judge made public comments that violated the Code of Conduct for United States Judges. She alleges that, after the September 11, 2001 attacks, the judge gave a speech in which he stated he “had a sickening feeling in [his] stomach about what might happen to race relations and religious tolerance” and that the “[c]riminalization of immigration laws” constituted “[i]nstitutionalized racism.” Complainant also alleges that, in another speech, the judge “criticized [a senator’s] work in trying to investigate campaign finance controversies involving [two individuals], both of whom eventually pled guilty to felony campaign finance law violations.” (First two alterations in original).

A judge does not check his First Amendment rights at the courthouse door, to be reclaimed at the expiration of his judicial tenure. See generally Leonard E. Gross, Judicial Speech: Discipline and the First Amendment, 36 Syracuse L. Rev. 1181 (1986). The Code of Conduct encourages judges to “speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Code of Conduct for United States Judges Canon 4. Engaging in such law-related activities — including speeches that comment on current events and legal developments — is permitted not only because judges are citizens, but because they are particularly knowledgeable on such topics. Their speech may thus enhance the public discourse and lead to a more informed citizenry. Here, the complaint alleges that the judge expressed his thoughts on racial and religious tolerance post-9/11, the direction of immigration law and a campaign finance controversy. These comments fall squarely within the ambit of protected speech and are precisely the kind of activity that the Code of Conduct encourages. Because complainant has not alleged behavior that is “prejudicial to the effective and expeditious administration of the business of the courts,” this charge must be dismissed. 28 U.S.C. § 351(a); Judicial-Conduct Rule 11(c)(1)(A).

Complainant also alleges that the judge “made jokes about [a candidate for high public office].” The mere fact that a statement takes the form of a joke does not render it misconduct; humor is the pepper spray in the arsenal of persuasive literary ordnance: It is often surprising, disarming and, when delivered with precision, highly effective. See Hustler Magazine v. Falwell, 485 U.S. 46, 54–55 (1988) (“Despite [its] sometimes caustic nature, [humor] . . . ha[s] played a prominent role in public and political debate[, and] . . . . our political discourse would have been considerably poorer without [it].”). Political humor is ubiquitous, especially during campaigns when candidates for public office become the subject of widespread discussion. A joke about someone running for office does not necessarily connote endorsement of, or opposition to, a particular candidate. See Code of Conduct for United States Judges Canon 5; cf. In re Charges of Judicial Misconduct, 404 F.3d 688, 698 (2d Cir. Jud. Council 2005) (noting that an “ethics expert had opined that federal judge’s public statement that President Reagan was a racist probably didn’t violate judicial ethical canons” (internal quotation mark omitted)). So far as can be discerned from the complaint, the joke was not racist, sexist or otherwise invidious; it was not reported in the press or the subject of any significant public comment. Compare id. at 696. Without more, there’s no basis for concluding that the judge’s conduct resulted in “a substantial and widespread lowering of public confidence in the courts.” Judicial-Conduct Rule 3(h)(2); see also In re Charges of Judicial Misconduct, 404 F.3d at 697–98. Because there’s no evidence of misconduct, this claim must be dismissed. See 28 U.S.C. § 352(b)(1)(A)(iii); Judicial-Conduct Rule 11(c)(1)(D).

Prof. Jonathan Turley has a somewhat different perspective: “It is the statement on the criminalization of immigration laws that I find a bit troubling. I find it rather injudicious for a judicial officer to be speaking out publicly against specific laws — laws that he could have to interpret or enforce.” It’s not clear from Prof. Turley’s post, though, whether he thinks the statement is a violation of the code of conduct, as opposed to just being unwise.

David Zaring links to the abstract of an interesting study that suggests judges who have daughters rule differently in cases involving “women’s issues.”  Here’s the abstract:

Social scientists have long maintained that women judges might behave different than their male colleagues (e.g., Boyd et al. (2010)). This is particularly true when it comes to highly charged social issues such as gender discrimination, sexual harassment, and the status of gender as a suspect classification under federal law. Less studied has been the role that a judge’s family might have on judicial decision making. For example, we may think that a male judge with daughters might have different views of gender discrimination and sexual harassment than a male judge without any daughters. This paper takes a look at the question causally by leveraging the hypothesis that, conditional on the number of total number of children, the probability of a judge having a boy or a girl is independent of any covariates (Washington 2008). Looking at data from the U.S. Courts of Appeals, we find that conditional on the number of children, judges with daughters consistently vote in a more liberal fashion on gender issues than judges without daughters. This effect is particularly strong among Republican appointed judges and is robust and persists even once we control for a wide variety of factors. Our results more broadly suggest that personal experiences — as distinct from partisanship — may influence how elite actors make decisions, but only in the context of substantively salient issues.

The Senate has just convicted federal district Judge Thomas Porteous, whose trial concluded yesterday, on all four articles of impeachment against him. The votes ranged from 69-27 to 96-0. The Senate unanimously convicted Porteous on Article I, which focused on his corruption in taking kickbacks from a law firm involved in a case he presided over as a federal judge. At the other extreme, 27 senators voted against Article II, which addressed Porteous’ corrupt relationship with a bail bondsman while he was a state judge. Perhaps these senators bought defense lawyer Jonathan Turley’s argument that the Constitution bars impeachment for offenses committed before a judge is appointed to the federal bench.

I think Turley’s argument is incorrect under the text of the Constitution. Article II, Section 4 states that “all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High crimes and misdemeanors.” It doesn’t impose any limitation regarding the timeframe during which the relevant crime was committed. If a federal judge confirmed in 2010 is later discovered to have committed murder in 2009, surely Congress could use impeachment to remove him from the bench.

Some, including Turley, have argued that Article III’s statement that judges serve during “good behavior” suggests that they can only be removed for misconduct committed during their time in judicial office. But this provision is generally interpreted to mean only that judges have the right to serve for life unless they are impeached and convicted. Moreover, Article III does not mandate that “bad behavior” justifying removal must occur during the judge’s tenure of office. Finally, Article III does not purport to limit the scope of Article II, Section 4. The best interpretation of the two articles is that judges can serve for life unless they are impeached and convicted for “high crimes and misdemeanors,” regardless of when the latter were committed.

In addition, the Senate also voted 94-2 to bar Porteous from holding federal office in the future. So no one need worry about him getting elected to Congress, as impeached judge Alcee Hastings did.

UPDATE: Senior Conspirator Eugene Volokh points out that it’s not entirely clear that the Senate has the power to ban impeached and convicted judges from running for Congress. He discussed the issue in some detail in this 2009 post. I tend to think that the Senate ultimately does have that power. But Eugene’s analysis shows that the issue is a lot more debatable than I initially thought.

It hasn’t made too many national headlines. But today the Senate began to hear the impeachment trial of Louisiana federal district Judge Thomas Porteous:

The attorney for a federal judge facing removal from office argued Tuesday at a rare Senate impeachment trial that Congress is pursuing vague and unconstitutional charges against his client and would be breaking with precedent by convicting him.

Defense attorney Jonathan Turley told senators assembled in the chamber for the historic proceeding that some of the articles facing Judge G. Thomas Porteous are subjective and that others involve conduct that occurred before Judge Porteous was appointed to the federal bench…..

The House voted unanimously in March to bring four articles of impeachment against him. A two-thirds Senate vote is needed to convict. The proceeding is just the 16th impeachment trial before the Senate, and Judge Porteous could become just the eighth federal judge to be removed from office.

House prosecutors allege that Judge Porteous was racking up debt as he struggled with drinking and gambling problems. They say he began accepting cash, meals, trips and other favors from people with business before his court, beginning as a state judge in the 1980s and continuing after he was appointed to the federal bench by President Bill Clinton in 1994.

During previous evidence-gathering hearings, two attorneys who once worked with Judge Porteous said they gave him thousands of dollars in cash, including about $2,000 stuffed in an envelope in 1999, just before he decided a major civil case in their client’s favor.

Impeachment trials of federal judges are rare events. This is only the 13th in all of American history. Sometimes, as in the case of Judge Samuel B. Kent last year (see here for more), the threat of impeachment helps force a resignation, thereby obviating the need for a trial.

In Porteous’ case, the House of Representatives voted in favor of sending four articles of impeachment to the Senate by unanimous tallies ranging from 412-0 to 423-0. That doesn’t bode well for his chances. I also suspect that the Senate won’t be much moved by his lawyer’s argument that “much of the judge’s behavior [w]as business as usual in the New Orleans-area legal community.” The Senate is expected to vote on the case tomorrow.

UPDATE: The arguments of the two sides are described more fully in this account of the hearings held in September by the Senate Impeachment Trial Committee:

The basic facts are largely uncontested, [House Impeachment Manager Rep.] Schiff emphasized. Porteous admitted to receiving gifts, expensive meals and liquor, cash payments, and home and car repairs from a local law firm and bonding firm while he was a state court judge. Porteous also was accused of receiving cash and gifts from the law firm after he became a federal judge when he had a case pending before him in which the firm was representing the party that eventually won — a decision the Fifth Circuit overturned in an opinion that castigated Porteous for the baselessness of his decision for the prevailing party.

The gifts included paying for trips to Las Vegas and for the bachelor party of the judge’s son. Porteous apparently had a serious gambling problem — [Rep.] Goodlatte noted that his credit card statements showed $130,000 in gambling debts and $27,000 in ATM withdrawals at casinos. According to Schiff, the behavior of Porteous was a basic betrayal of public trust and so inimical that the Senate cannot allow him to remain on the bench.

George Washington University law professor Jonathan Turley gave an opening statement for the defense….. Turley claimed that because Porteous was never criminally charged, the Senate must use the criminal standard of proving a case beyond a reasonable doubt to find that Porteous committed any of the acts of which he is accused. Turley also contested the facts and claimed that while the judge may have been guilty of bad judgment, he did not break any laws, did not act unethically, and just engaged in business as usual in New Orleans.

UPDATE #2: The impeachment managers’ brief putting forward the evidence against Porteous is here. Here is Jonathan Turley’s very lengthy brief for the defense.

It seems that everyone’s against “judicial activism,” but what does it mean?  Does labeling a judge or decision “activist” indicate anything more than disagreement with the outcome?  Is it fair to label a judge or judicial nominee “activist”?  The Federalist Society has just posted a podcast debate on these questions featuring our own Randy Barnett, Pamela Karlan, Ed Whelan, and Erwin Chemerinsky.  John Eastman moderates.

The Cleveland Plain Dealer reports on a judge that seems to have some trouble obeying the law and paying her fines.

Cuyahoga County Common Pleas Judge Shirley Strickland Saffold has not paid more than $1,000 in fines and late fees for city of Cleveland traffic and parking tickets issued since 2006, records show.

She owes Cleveland $1,040 in fines and late fees for seven camera-issued tickets and one parking ticket, Cleveland Municipal Court Clerk records show. She has so many unpaid fines that police say they could tow her car to an impound lot if they spot it on the street. . . .

Saffold has received three collection notices for each of the seven tickets issued for her car. She would have owed $700 for the tickets if she had paid them on time. Saffold made two partial payments, in November and January, on tickets from 2006 and 2008, records show.

Late Friday, Saffold’s attorney, Brian Spitz, issued a statement, saying: “Shirley Saffold was cited as a result of automated pictures of her car going through red lights. She is on a payment plan and will provide proof of prior payments if the Plain Dealer would like to do a full and fair investigation. As this story is not newsworthy and investigates only one public official’s traffic record, it is, in my opinion, yet another vindictive, petty story by the Plain Dealer.”

Obie Shelton, spokesman for the clerk’s office, said Friday that the office does offer a payment plan, but he said Saffold is not on it. He said her two partial payments were not part of a payment plan.

This is the same Judge Saffold who’s been in the news of late for her on and is suing the Plain Dealer for its coverage of her conduct.

Over at NRO, Ed Whelan has been following some bizarre manuevering by the federal district court judge in the Northern District of California who apparently is trying to have a televised “show trial” regarding Proposition 8. 

Without getting into the merits of Proposition 8 or the legal challenges to it, I agree with Whelan that it seems highly unusual for a judge to authorize televised proceedings for this particular case as part of some new “pilot” project to see how televised proceedings work.  Surely if there were going to be a test run of a new idea, it should be in a more run-of-the-mill case rather than this particular highly controversial one.    Moreover, it does appear that public comment process has been completely short-circuited.

J. Robert Brown considers the potential effect of legal blogging on judicial decisions.  Any such influence would be difficult to quantify. Even when a judicial decision cites a blog, it is hard to know whether the blog in question actually influenced the case’s outcome.  Nonetheless, there are occasional instances in which it is quite probable blogging influenced judicial behavior.

The Florida Judicial Ethics Committee has issued an opinion forbidding judges to be Facebook “friends” with lawyers who may appear before them:

Judges and lawyers in Florida can no longer be Facebook friends.

In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”

In practice, of course, actual friends and Facebook friends can be as different as leather and pleather, and the committee did recognize that online friends were not the same as friends in the traditional sense. A minority of the panel would have allowed Facebook friendship, which it characterized as more like “a contact or acquaintance” without conveying the notion of “feelings of affection or personal regard.”

But the committee’s majority concluded that the possibility of the appearance of impropriety required that they recommend against friending, said Judge T. Michael Jones of the First Judicial Circuit Court, a committee member. He emphasized that the committee’s role was advisory, and that the opinion “does not have the force of a Supreme Court opinion” in Florida.

The opinion itself is available here.

At first glance, it might seem as if the opinion reflects a generational divide. The older members of the Committee may simply not understand how Facebook and other social networking sites work, and therefore don’t realize that a Facebook “friendship” doesn’t necessarily signal any kind of close relationship. Indeed, many Facebook friends don’t know each other in the real world at all. Only those ignorant of the way these sites function would assume that a Facebook friend is likely to be “in a special position to influence the judge.”

The problem goes deeper than that, however. As far as I know, both Florida and most other states don’t forbid judges to be real-world friends with lawyers who may appear before them. A judge who shows favoritism to a lawyer who is a personal friend may be sanctioned, as notorious federal district Judge Samuel B. Kent was (Kent was later forced to resign because of unrelated criminal charges). But the mere existence of a friendship between lawyer and judge is not considered to be a violation of judicial ethics in and of itself. So the Florida Committee’s approach actually treats Facebook friendship between lawyers and judges as a more serious breach of judicial etiquette than a genuinely close friendship between the two. I could understand the logic of a rule that forbade all social fraternization between judges and lawyers who might appear before them. Such a rule would be unduly harsh. Yet it would at least be consistent. But I can’t understand the justification for a rule that bans essentially innocuous Facebook “friendships” but turns a blind eye to real friendships.

UPDATE: I discussed the related issue of Facebook friendships between professors and students here and here. My general policy is that I accept “friend” requests from students, but do not initiate them, so that students will not feel pressured to reveal personal information to me. I don’t worry that people will think that I am somehow favoring students who are Facebook “friends,” because most interested observers will understand that Facebook friendship is not actually any kind of genuinely close relationship.

More depressing news from Wilkes-Barre, where 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 of “honest services fraud for improperly influencing a court case.” How much to make of all this is unclear, I suppose; it’s just another example of dishonest people abusing their positions, and to be sure there’s plenty of that to go around pretty much everywhere in the country. But I’ve been teaching in Philadelphia for the last 13 years, and I have to say that the culture of corruption in the police and judicial systems in this part of the world is jaw-dropping and very depressing; it’s taken for granted that judges and cops are routinely on the take (it’s well known, also, that judges buy their positions from local party leaders for cold, hard cash). Philadelphia has long since ceased to be the world class city that it was 150 or 200 years ago – but there are pockets of terrific energy and creativity bubbling up in Philly, and lots of new folks bringing new ideas and new enthusiasm into town; I do think, though, that until this corruption culture is brought to heel, it will keep holding it back from any chance of getting back on its feet and dealing with the profound problems that it has.
[Thanks to Mike Davidson for the link]

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]