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Tuesday, November 1, 2011

Court Finds Judicial Immunity Extends to Judge's Law Clerk

Court Finds Judicial Immunity Extends to Judge's Law Clerk
The New York Law Journal by Joel Stashenko  -  October 31, 2011

ALBANY, NY - Judicial immunity extends to a family law clerk who issued an order of protection under the auspices of Family Court Judge John J. Brennan (See Profile) in Herkimer County, a Court of Claims judge has determined.  The actions of Bart M. Carrig, senior law clerk to Judge Brennan, in a domestic violence case were undertaken within the proper jurisdiction and legal protections of the Family Court in central New York, Court of Claims Judge Glen T. Bruening ruled from Albany in Gookins v. State of New York, 2011-048005 and 119903.  "Judicial immunity has been extended to those individuals who perform quasi-judicial functions—those functions that are 'closely associated with the judicial process,'" Judge Bruening ruled, quoting Cleavinger v. Saxner, 474 U.S. 193 (1985), and Oliva v. Heller, 839 F2d 37 (1988). "As is relevant to this action, a law clerk for a judge, who 'generally performs discretionary acts of a judicial nature' has been described as an 'extension of the judge at whose pleasure [he or she] serve[s].'"  Beverly Gookins, a pro se plaintiff, had sought compensation from the state for what she contended were improprieties by Mr. Carrig.  The case stemmed from a contentious Family Court proceeding in January 2011 in which Ms. Gookins contended that her former daughter-in-law, Kathleen Mauro, verbally abused her before cutting off Ms. Gookins' vehicle as it exited the court parking lot. Ms. Mauro also gave Ms. Gookins "the finger with malice and anger," according to Judge Bruening.  Ms. Gookins filed a petition in Family Court alleging disorderly conduct, harassment and menacing against Ms. Mauro.  Ms. Gookins alleged that Ms. Mauro and her attorney subsequently consented before Mr. Carrig to the issuance of an order of protection in Ms. Gookins favor.  But Ms. Gookins claimed that Mr. Carrig never notified Judge Brennan of the alleged agreement, and that the court attorney's failure to do so constituted "negligence and a breach of Attorney Carrig's oath of office" as required under 22 NYCRR §25.21.  Ms. Gookins also contended that by dismissing the claim and allowing Mr. Carrig "quasi-judicial immunity," the Court of Claims would be encouraging "slip shod" work by similarly situated state court law clerks.  Judge Bruening, however, ruled that the state's waiver of sovereign immunity under Court of Claims Act §8 does not preclude the state from asserting common-law immunity based on governmental, legislative and judicial immunity. Under that standard, he ruled, the actions of Mr. Carrig were shielded from liability because "judicial immunity has been extended to those individuals who perform quasi-judicial functions, those functions that are 'closely associated with the judicial process.'"  Such was the case for the functions Mr. Carrig performed for the court, wrote Judge Bruening.  "For purposes of absolute judicial immunity, judges and their law clerks are as one," Judge Bruening wrote, quoting Oliva v. Heller, 670 F. Supp 523 (1987).  The judge also held that Ms. Gookins had failed to demonstrate conclusively that constitutional violations had been committed against her by the state.  Assistant Attorney General G. Lawrence Dillon represented the state.  Joel Stashenko can be contacted at jstashenko@alm.com.

11 comments:

had enough said...

Hasn't the time come to get rid of ALL immunity?!?!?

Anonymous said...

Actually that depends upon the facts and circumstances of a particular case.

There is case law which suggests that the Law Clerk's immunity is derivative.

If the Judge doesn't have it, it doesn't make its way to the clerk!!

Anonymous said...

This "judicial immunity" nonsense is just another scam created by those insiders to protect themselves.

There is nothing in either the US or NYS Constitution or in any law that allows them to give themselves immunity from anything.

Anonymous said...

Well fortunately it doesn't factor into my case.

There are but two exceptions to the rule of judicial immunity, the first is where the judge is not acting as a judge and the second where the judge though acting under color of judicial authority lacks any jurisdiction to support the action taken (see Alvarez v. Snyder, 264 AD2d 27, 31; Mireles, supra).

Anonymous said...

Immunity empowers the wrongdoers. Immunity of any kind is wrong, especially in a so-called system of law.

Anonymous said...

Concededly, it has been held by some courts that judicial immunity does not apply to "ministerial" acts (see, Lowe v Letsinger, 772 F2d 308, 312 [7th Cir 1985] [judicial immunity applies to "judicial acts, but not to ministerial or administrative acts"]). However, we take the view that the question of whether the act of a court employee is immune from suit does not rest on whether it is discretionary or non-discretionary. On the contrary, judicial immunity "applies to all acts of auxiliary court personnel that are `basic and integral part[s] of the judicial function,' unless those acts are done `in the clear absence of all jurisdiction'" (Sindram v Suda, 986 F2d 1459, 1461 [DC Cir 1993], citing Mullis v United States Bankruptcy Ct., 828 F2d 1385, 1390 [9th Cir 1987], appeal dismissed and cert denied 98*98 486 US 1040; Foster v Walsh, 864 F2d 416, 417 [6th Cir 1988]; Dellenbach v Letsinger, 889 F2d 755, 763 [7th Cir 1989], cert denied 494 US 1085; Rodriguez v Weprin, 116 F3d 62 [2d Cir 1997]).

Anonymous said...

If the immunity scam was halted there would first be a run to get off the bench by the really corrupt. That would followed by certain folks paying attention to their oath a office (hint: oath of office has something to do with upholding laws)

Anonymous said...

If the immunity scam was halted there would first be a run to get off the bench by the really corrupt. That would followed by certain folks paying attention to their oath a office (hint: oath of office has something to do with upholding laws)

Anonymous said...

they protect their own at all costs - put them all in jail - notify all the members of their community about their elevated status - SHAME the bastards and their families

Anonymous said...

Glen T. Bruening, if the same one and likely that he is, was a nice attorney at the Office of General Counsel of the NYS DEC during the Gov Mario Cuomo days, heading up legal matters for the Division of Water.

Seems like he stayed tight with the politics however and his name just last week came up on a search of Executive Chamber employees under Governor Andrew Cuomo as being in Counsel's Office in the Chamber.

Any idea if this is same person and if so, when was he "moved over" to a Judgeship?

That is the way it all works, or most of it, moving folks in and out of various positions as needed.

Disgusted said...

And the lawless judges protect their lackeys too.
If we have a government of laws, then the same laws apply to all and there is no immunity for a judge violating those laws. But we have government courts of men(judges)who are not bound by law and who other judges protect with judicial immunity for acts in violation of law. Such a system deserves no respect, nor do the judges who perpetuate it.

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