Judges Failing Duty, Protecting Their Own

Circuit Finds Judges Immune From Suit for 18-B Pay Review
The New York Law Journal by Mark Hamblett - August 31, 2009

A lawyer who claimed judges in Queens Family Court conspired to cut his pay vouchers in cases to which he had been assigned because he submitted too many contested motions has lost his federal court battle for damages. The attorney, David Bliven, said he was forced to resign from the 18-B assigned-counsel panel, thereby losing two-thirds of his regular income, due to pressure from judges who did not like the extensive motions he made in some 15 child protective and foster care cases starting in 2001. Acting pro se, Mr. Bliven, of White Plains, in 2005 sued Queens Family Court Judges John Hunt and Barbara Salinitro; Guy DePhillips, the Family Court supervising judge; and Joseph Lauria, the administrative judge for New York City Family Court as well as their staff attorneys. Mr. Bliven claimed that every voucher he submitted between March and September 2002 to Judges Hunt or Salinitro was reduced by $50 to $100 with no explanation. Two staff attorneys, Douglas Foreman and Julie Stanton, Mr. Bliven said, told him the reduction was due to his filing motions to compel disclosures of complete Administration for Children's Services files. Mr. Bliven also charged that he was told the judges were threatening to file a grievance against him for complaining about the reductions. He asked for $5 million in compensatory damages, principally under 42 U.S.C §1983, alleging various grounds, including denial of substantive and procedural due process, conspiracy to deprive him of equal protection and conspiracy to deprive persons charged with child neglect and/or abuse of effective representation. He also sought $16,637 from New York City for a breach of contract claim. Further, he petitioned the court to enjoin the state and city from requiring judicial approval of vouchers and to order that any fee disputes be arbitrated.

But Eastern District Judge Sandra J. Fuerstein concluded that the defendants were absolutely immune from suit for judicial acts and dismissed his case in Bliven v. Hunt, 418 F. Supp. 2d 135. On Friday, the dismissal was upheld by the U.S. Court of Appeals for the Second Circuit. Judges Amalya Kearse, Robert Sack and Robert Katzmann decided the appeal in Bliven v. Hunt, 07-1146-cv. Judge Kearse wrote for the panel. The Second Circuit decision will be published tomorrow. Judge Kearse said it is "well settled that judges generally have absolute immunity from suit." But, she said, they are not immune to suit stemming from non-judicial actions, such as administrative decisions. One example of an administrative decision for which judges have been found liable to suit is in firing or demoting a court employee. Part of the analysis in distinguishing judicial from administrative actions, Judge Kearse said, is whether the judge's action is related to a particular case. Here, she said, "the determination by a judge as to whether a given fee request by an 18-B Panel member is reasonable is clearly case-related." Judge Kearse said Mr. Bliven was wrong to rely on Mitchell v. Fishbein, 377 F.3d 157 (2004), where the Second Circuit held that a screening committee that compiled a list of 18-B attorneys performed administrative and legislative functions rather than judicial. Nor was Mr. Bliven helped by citing Levenson v. Lippman, 4 N.Y.3d 280 (2005), where the New York Court of Appeals characterized an "award of compensation fees" as an "administrative rather than judicial act of the trial judge."

In Lippman, the Court said then-Chief Administrative Judge Jonathan Lippman did not violate state law by amending regulations to provide for the review by the appropriate administrative judge of awards by trial court judges that exceeded court guidelines. "Notwithstanding the New York Court of Appeals' characterization of 18-B Panel fee awards as administrative for purposes of ensuring their reviewability, we are not persuaded that a judge's decision as to reasonable attorney's fee is an administrative, rather than a judicial, decision for purposes of determining whether the judge is to have absolute immunity for that decision," Judge Kearse said. "The authority to decide what is a reasonable attorney's fee for representing a client in a particular case is plainly part of the judicial function performed in many cases." Mr. Bliven, who is on the 18-B panel in Westchester, said Friday he was "disappointed in the result but not entirely surprised." "It's certainly not a decision on the merits of the case and I stand by the facts that I put in my complaint," Mr. Bliven said. "I would hope the Legislature would act to amend the law to take the approval of public defenders' pay out of the hands of judges because certainly the judges don't have oversight on what prosecutors or city attorneys should get and they should not have that kind of oversight over only one side of the case." Assistant Solicitor General Diana R.H. Winters represented the state. Susan Choi-Hausman represented New York City. Mark.Hamblett@incisivemedia.com