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.