PALOWSKY III v. CAMPBELL (2018)

The plaintiff appeals a trial court's judgment striking forty-six paragraphs and three subparagraphs from his eighty-eight paragraph petition for damages. He also appeals the two trial court's judgments that granted the defendants' peremptory exceptions raising the objection of no cause of action, based on absolute immunity. For the reasons that follow, we reverse in part and affirm in part the judgment regarding the motion to strike. We affirm the judgment that found no cause of action against the defendant judges and reverse the judgment that found no cause of action against the defendant law clerk.

FACTUAL AND PROCEDURAL HISTORY

On July 22, 2015, the plaintiff, Stanley R. Palowsky, III, individually and on behalf of Alternative Environmental Solutions, Inc., filed a Petition for Damages against the defendant, Allyson Campbell, a law clerk for the Fourth Judicial District Court (Fourth JDC), asserting that Ms. Campbell maliciously and intentionally harmed Mr. Palowsky “when she spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly 'handled' court documents” in the matter entitled Palowsky v. Cork, Docket No. 13–2059, of the Fourth JDC. Thereafter, on July 31, 2015, Mr. Palowsky filed a First Supplemental, Amended, and Restated Petition for Damages, adding as defendants, Chief Judge H. Stephens Winters, Judge Carl V. Sharp, Judge J. Wilson Rambo, and Judge Frederic C. Amman, current Fourth JDC judges, and retired Judge Benjamin Jones, the current Fourth JDC administrator ¹ (the Judges), asserting that they aided and abetted Ms. Campbell “by allowing her free rein to do as she pleased and then conspiring to conceal [Ms.] Campbell's acts.” Subsequently, all the judges of the Fourth JDC recused themselves from the matter, and the Louisiana Supreme Court appointed retired Judge Jerome J. Barbera, III, as judge ad hoc to preside over the case.

In response to Mr. Palowsky's pleadings, Ms. Campbell and the Judges each filed a motion to strike specific paragraphs of Mr. Palowsky's petition and various exceptions, including the peremptory exception raising the objection of no cause of action based on judicial immunity.² On November 5, 2015, the trial court held a hearing on the motions to strike and the exceptions of no cause of action. The trial court first addressed the motions to strike and ordered that forty-six paragraphs and three subparagraphs of Mr. Palowsky's eighty-eight paragraph amended petition be stricken, finding them to be immaterial.³ After granting the motions to strike, the trial court addressed the exceptions of no cause of action based on the remaining paragraphs of Mr. Palowsky's amended petition. The trial court determined that the Judges and Ms. Campbell were entitled to absolute immunity for their alleged actions and granted the exceptions.

On December 11, 2015, the trial court signed a judgment regarding the motions to strike filed by Ms. Campbell and by the Judges. On that same date, the trial court also signed a judgment granting the exception of no cause of action in favor of Ms. Campbell and a judgment granting the exception of no cause of action in favor of the Judges, dismissing Mr. Palowsky's case against them with prejudice.

Mr. Palowsky filed an appeal of the three judgments with the Court of Appeal, Second Circuit, and seven of the judges of that court recused themselves. Therefore, on September 7, 2016, the Louisiana Supreme Court ordered the transfer of the appeal of the matter to the Court of Appeal, First Circuit.

ASSIGNMENTS OF ERROR

In his appeal, Mr. Palowsky has assigned the following as error:

A. The trial court erred by finding that forty-six paragraphs and three subparagraphs in Mr. Palowsky's amended petition were immaterial and granting the defendants' motions to strike same.

B. The trial court erred by finding that the Judges had absolute immunity from liability for their actions and thereby granting their exception of no cause of action.

C. The trial court erred by finding that Ms. Campbell had absolute immunity from liability for her actions and thereby granting her exception of no cause of action.

D. The trial court erred in refusing to give Mr. Palowsky the opportunity to amend his petition to state a cause of action.

THE MOTIONS TO STRIKE

Louisiana Code of Civil Procedure Article 964 provides:

The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.

The granting of a motion to strike pursuant to Louisiana Code of Civil Procedure article 964 rests in the sound discretion of the trial court and is reviewed under the abuse of discretion standard. Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1162 (La. 1988). See also Detillier v. Borne, 15-129 (La.App. 5 Cir. 9/23/15), 176 So.3d 669, 671. Motions to strike are viewed with disfavor and are infrequently granted. They are disfavored because striking a portion of a pleading is a drastic remedy, and because they are often sought by the movant simply as a dilatory tactic. However, a motion to strike is proper if it can be shown that the allegations being challenged are so unrelated to a plaintiff's claims as to be unworthy of any consideration and that their presence in the pleading would be prejudicial to the moving party. Carr v. Abel, 10-835 (La.App. 5 Cir. 3/29/11), 64 So.3d 292, 296, writ denied, 11-0860 (La. 6/3/11), 63 So.3d 1016. See also Smith v. Gautreau, 348 So.2d 720, 722 (La.App. 1 Cir. 1977). A motion to strike is a means of clearing up the pleadings, not a means of eliminating causes of action or substantive allegations. Hicks v. Steve R. Reich, Inc., 38,424 (La.App. 2 Cir. 5/12/04), 873 So.2d 849, 852; Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-0345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, 98.

Because the source of Article 964 is found in Rule 12(f) of the Federal Rules of Civil Procedure, we look to federal jurisprudence to assist us in analyzing Article 964.⁴ Smith, 348 So.2d at 722. The terms “redundant, immaterial, impertinent, or scandalous matter” have been defined in at least one federal case, Marceaux v. Lafayette Consol. Government, 6:12–01532 (W.D. La. 10/18/12), 2012 WL 5197667 (unpublished), wherein the court stated:

Redundant matter consists of allegations that constitute a needless repetition of other averments in the pleading. Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Immateriality is established by showing that the challenged allegations “can have no possible bearing upon the subject matter of the litigation.” Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question; while scandalous matter is that which improperly casts a derogatory light on someone, most typically on a party to the action. “The granting of a motion to strike scandalous matter is aimed, in part, at avoiding prejudice to a party by preventing a jury from seeing the offensive matter or giving the allegations any other unnecessary notoriety inasmuch as, once filed, pleadings generally are public documents and become generally available.”

Id. (footnotes with citations omitted); see also Bayou Fleet Partnership, LLC v. St. Charles Parish, 10–1557 (E.D. La. 7/8/11), 2011 WL 2680686 (unpublished).

In this matter, Mr. Palowsky alleged that he is the fifty-percent shareholder and director of Alternative Environmental Solutions, Inc. (AESI). Mr. Palowsky also asserted that he filed suit against W. Brandon Cork, the other fifty-percent shareholder of AESI, for damages Mr. Palowsky suffered as a result of Mr. Cork's theft, fraud, racketeering, and breach of fiduciary duty.

In his original petition against only Ms. Campbell, Mr. Palowsky alleged that Ms. Campbell acted outside the course and scope of her employment to maliciously and intentionally harm Mr. Palowsky by allegedly destroying or withholding certain court filings. Mr. Palowsky's First Supplemental, Amended, and Restated Petition for Damages again stated that Ms. Campbell was acting outside the course and scope of her employment duties and added the Judges as defendants for allegedly “aiding and abetting [Ms.] Campbell by allowing her free rein to do as she pleased and then conspiring to conceal [Ms.] Campbell's acts.” He did not allege any participation on the part of the Judges in the alleged destruction or withholding of court documents.

Ms. Campbell filed her motion to strike on August 10, 2015, and the Judges filed their motion on August 25, 2015,⁵ in which the Judges and Ms. Campbell asserted that most of Mr. Palowsky's allegations of “fact” in his amended petition were included for no other purpose than to embarrass, harass, and unnecessarily criticize the defendants. The trial court, in its oral reasons, discussed the issues of immateriality and prejudice necessary for a motion to strike pursuant to LSA–C.C.P. art. 964. As to prejudice, the court stated:

[C]ertainly the allegations that have been made about the previous events that go back even the 2010 [event] involving Ms. Campbell and then the other events that are alleged in the petition, the amended petition, about the actions and inactions of the judges certainly all of the information provided is prejudicial because it—it shows these parties to suggest to the reader that these parties are acting contrary to the ethics and responsibilities of their job and these allegations point to the reader that they've committed crime, and that they have acted badly, and that something should happen to them as a result of their activity. So there's no doubt that the allegations are prejudicial because anyone who would read that if they were convinced of the truth of it would form conclusions both about Ms. Campbell and the judges about their fitness and their ethics and their responsibility. Anyone who would read those allegations would certainly have questions about those things. So I don't think there's any doubt that the allegations that are at issue in the case are prejudicial.

Thereafter, the trial court addressed the second factor of “whether or not these allegations have any bearing on the subject matter of the litigation,” which it framed as follows:

What this [amended] petition says is that Allyson Campbell, a law clerk to the judges of this district, an employee of the court, caused harm to the plaintiff by her actions in concealing, destroying, removing, withholding, and improperly handling, and I'm not quoting that verbatim, in improperly handling pleadings and court documents pertaining to civil litigation filed in this district by the plaintiff against a former business associate. So that's how I would sum up the cause of action by the plaintiff against Ms. Campbell. The petition also says that the named defendant judges are liable to the plaintiff for damages as a result of their aiding and abetting Ms. Campbell and conspiring to conceal her actions. So that's my summary of what this lawsuit is about.

The trial court then addressed the materiality of the allegations, finding a difference between materiality and admissible evidence at the trial of the matter, and stated:

[I]n looking at the other allegations of the petition that the defendants seek to strike it is evident to me that many of them are immaterial to the cause of action․ The question is, is whether or not they are material to the cause of action. And I made a determination that most of the [paragraphs] that are complained of are not material.

The court concluded that the following paragraphs of Mr. Palowsky's petition contained allegations that were immaterial to his lawsuit:

The court will strike Articles 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, paragraph A of 52, and paragraph C of 52, paragraph E of 52, 58, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 79, 80, 81, and 82.

The paragraphs stricken included allegations of payroll irregularities and investigations, as well as assertions of payroll fraud by Ms. Campbell and a conspiracy to cover up the fraud by the Judges. More specifically, the petition asserted the existence of an investigation by the Louisiana Legislative Auditor into possible payroll fraud regarding some Fourth JDC employees being paid for hours that were not worked. Other paragraphs stricken as immaterial regarded the destruction or concealment of documents in other cases by Ms. Campbell and the subsequent knowledge by the Judges. Additionally, paragraphs detailing Ms. Campbell's personal life and work habits were deleted by the trial court. Mr. Palowsky asserted that Ms. Campbell boasted in a local bar that she had shredded or withheld a court document in another case and that she had a weekly “society” column entitled, “A modern guide to handle your scandal,” in which she made comments, such as, “I represent to you all the sins you have never had the courage to commit,” and, “It's not cheating if it's in your favor.”

While many of the stricken allegations in Mr. Palowsky's amended petition have nothing to do with his present lawsuit, some of the stricken paragraphs arguably show a prior history of concealment or destruction of court documents by Ms. Campbell. Particularly, Paragraphs 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, and 52C refer to the alleged destruction or concealment of court documents by Ms. Campbell in a case handled by another attorney in the Fourth JDC and the Judges' subsequent knowledge of same. Upon careful review of these allegations, and finding that they could have some bearing on the subject matter of the litigation, in that they allege a pattern of behavior by Ms. Campbell of destroying court documents, we cannot find that these paragraphs are immaterial to this matter. Therefore, we find that the trial court abused its discretion in striking Paragraphs 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, and 52C. Additionally, we find an abuse of discretion in striking Paragraphs 58, 61, 63, 68, 69, 71, 80, and 81 as they also refer to Ms. Campbell's pattern of behavior or willingness to act in such a manner.

Therefore, we reverse in part the December 11, 2015 judgment of the trial court insofar as it granted the motions to strike by the Judges and by Ms. Campbell with regard to Paragraphs 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 52C, 58, 61, 63, 68, 69, 71, 80, and 81 of Mr. Palowsky's amended petition, finding those paragraphs material to the instant matter. We find no abuse of discretion by the trial court in striking as immaterial Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 39, 42, 52A, 52E, 59, 62, 64, 65, 66, 67, 70, 79, and 82.

NO CAUSE OF ACTION

As used in the context of the peremptory exception, a “cause of action” refers to the operative facts which give rise to the plaintiff's right to judicially assert the action against the defendant. Scheffler v. Adams and Reese, LLP, 06-1774 (La. 2/22/07), 950 So.2d 641, 646; Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So.2d 114, 118. The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Scheffler, 950 So.2d at 646; Ramey, 869 So.2d at 118. No evidence may be introduced to support or controvert the exception of no cause of action. LSA–C.C.P. art. 931. The exception is triable on the face of the pleadings, and, for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Scheffler, 950 So.2d at 646; Fink v. Bryant, 01-0987 (La. 11/28/01), 801 So.2d 346, 349. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Scheffler, 950 So.2d at 646; Ramey, 869 So.2d at 118.

Louisiana retains a system of fact pleading, and mere conclusions of the plaintiff unsupported by facts will not set forth a cause or right of action. Scheffler, 950 So.2d at 646–47; Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131. The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Scheffler, 950 So.2d at 647; Ramey, 869 So.2d at 119. Because the exception of no cause of action raises a question of law and the trial court's decision is based solely on the sufficiency of the petition, review of the trial court's ruling on an exception of no cause of action is de novo. Scheffler, 950 So.2d at 647; Fink, 801 So.2d at 349. The pertinent inquiry is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid cause of action for relief. Scheffler, 950 So.2d at 647; Ramey, 869 So.2d at 119.

The doctrine of judicial immunity developed at common law as a shield intended to protect judges from civil suits for damages for actions taken in their judicial capacity. Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288, 294 (1967). The doctrine can be traced back to the successful efforts of the King's Bench to ensure the supremacy of the common-law courts. Pulliam v. Allen, 466 U.S. 522, 530, 104 S.Ct. 1970, 1974–75, 80 L.Ed.2d 565, 571 (1984). The fundamental policy principle underlying the doctrine of judicial immunity was reiterated by the United States Supreme Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347, 20 L.Ed. 646, 649 (1871), where the Court held that “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” See also Estate of Sherman v. Almeida, 747 A.2d 470, 473–74 (R.I. 2000). The Supreme Court more recently observed that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.” Cleavinger v. Saxner, 474 U.S. 193, 199, 106 S.Ct. 496, 499–500, 88 L.Ed.2d 507 (1985) (quoting Pierson v. Ray, 386 U.S. at 553–54, 87 S.Ct. at 1217).

Accordingly, a long line of Supreme Court cases acknowledge that, generally, a judge is immune from a suit for money damages. Mireles v. Waco, 502 U.S. 9, 9–10, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991) (citations omitted). Courts have consistently held that judicial immunity is an immunity from suit, not just the ultimate assessment of damages. Mireles, 502 U.S. at 11, 112 S.Ct. at 288 (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ). In Pierson, the Supreme Court stated that judicial immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. Pierson, 386 U.S. at 554, 87 S.Ct. at 1218. It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision making but to intimidation. Id.; see also Oliva v. Heller, 839 F.2d 37, 39 (2nd Cir. 1988).

The Supreme Court again explained the purposes served by judicial immunity in Forrester v. White, 484 U.S. 219, 226–27, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988), stating that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have. If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication. Id.

There are only two circumstances under which judicial immunity may be overcome. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction. Mireles, 502 U.S. at 11–12, 112 S.Ct. at 288. Allegations of bad faith or malice are not sufficient to overcome judicial immunity. Mireles, 502 U.S. at 11, 112 S.Ct. at 288. See also Kemp ex rel. Kemp v. Perkins, 324 Fed.Appx. 409, 411 (5th Cir. 2009) (unpublished).

“[W]hether an act by a judge is a 'judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his [or her] judicial capacity.” Mireles, 502 U.S. at 12, 112 S.Ct. at 288 (quoting Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed.2d 331 (1978) ). The relevant inquiry is the nature and function of the act, not the act itself. In other words, a court should look to the particular act's relation to a general function normally performed by a judge. Mireles, 502 U.S. at 13, 112 S.Ct. at 288. The United States Fifth Circuit has adopted a four-factor test for determining whether a judge's actions are judicial in nature: (1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge's chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity. Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005) (citing Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir.1993) ); McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972). These factors are broadly construed in favor of immunity. Ballard, 413 F.3d at 515; Malina, 994 F.2d at 1124. See also Davis v. Tarrant County, Tex., 565 F.3d 214, 222–23 (5th Cir. 2009). Further, in some situations, immunity is to be afforded even though one or more of the four factors is not met. Malina, 994 F.2d at 1124.

“When applied to the paradigmatic judicial acts involved in resolving disputes between parties who have invoked the jurisdiction of a court, the doctrine of absolute judicial immunity has not been particularly controversial,” but “attempting to draw the line between truly judicial acts, for which immunity is appropriate, and acts that simply happen to have been done by judges” has proven to be a more difficult task. Forrester, 484 U.S. at 227, 108 S.Ct. at 544. Immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches. Id. The Supreme Court has forcefully indicated that the limits of judicial immunity are not to be set by subtle legalistic distinctions; rather, a broad functional approach is required: “Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities.” Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978); Holloway v. Walker, 765 F.2d 517, 524 (5th Cir. 1985).

In determining whether a judge is entitled to absolute immunity for a particular act, a court must also draw a “distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.” Forrester, 484 U.S. at 227, 108 S.Ct. at 544. See also Huminski v. Corsones, 396 F.3d 53, 75 (2nd Cir. 2005). Although administrative decisions “may be essential to the very functioning of the courts,” such decisions have not been regarded as judicial acts. Forrester, 484 U.S. at 228, 108 S.Ct. at 544; Davis, 565 F.3d at 222.

Additionally, judicial immunity does not extend to acts committed with a clear absence of all jurisdiction. However, the term “jurisdiction” is to be broadly construed to effectuate the policies of guaranteeing a disinterested and independent judicial decision-making process. Stump, 435 U.S. at 356–57, 98 S.Ct. at 1105; Holloway, 765 F.2d at 523. Where a judge does not clearly lack all subject-matter jurisdiction, he does not clearly lack all jurisdiction, and “the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons.” Bradley, 80 U.S. at 352; Holloway, 765 F.2d at 523.

Louisiana jurisprudence on judicial immunity mirrors the federal doctrine. Viator v. Miller, 04-1199 (La.App. 3 Cir. 4/27/05), 900 So.2d 1135, 1140; McCoy v. City of Monroe, 32,521 (La.App. 2 Cir. 12/8/99), 747 So.2d 1234, 1241, writ denied, 00-1280 (La. 3/30/01), 788 So.2d 441. Judges may not be cast for damages for their errors unless they have acted outside of their judicial capacity. It has long been held on the grounds of necessity and public policy that judges acting within the scope of their subject matter jurisdictions cannot be held liable for acts done in their judicial capacities. Knapper v. Connick, 96-0434 (La. 10/15/96), 681 So.2d 944, 946; Haley v. Leary, 09-1626 (La.App. 4 Cir. 8/4/10), 69 So.3d 430, 432–33, writ denied. 10-2265 (La. 12/17/10), 51 So.3d 14, cert. denied, 565 U.S. 820, 132 S.Ct. 104, 181 L.Ed.2d 32 (2011). The immunity is extended because of the function it protects rather than the title of the person who claims it. Absolute immunity attaches to all acts within a judge's jurisdiction, even if those acts can be shown to have been performed with malice, in order to insure that all judges will be free to fulfill their responsibilities without the threat of civil prosecution by disgruntled litigants. Knapper, 681 So.2d at 946; Haley, 69 So.3d at 433.

With regard to law clerks, a law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge's own exercise of the judicial function. Oliva, 839 F.2d at 40. A judicial opinion is not that of the law clerk, but of the judge. However, law clerks are closely connected with the court's decision-making process and are sounding boards for the judge's tentative opinions and legal researchers who seek the authorities that affect those decisions. Clerks are privy to the judge's thoughts in a way that neither parties to the lawsuit nor his most intimate family members may be. Moreover, the work done by law clerks is supervised, approved, and adopted by the judges who initially authorized it. Law clerks are essentially extensions of the judges at whose pleasure they serve. Therefore, a law clerk who is clearly assisting the judge in carrying out judicial functions is covered by the doctrine of absolute immunity. Id. See also Mitchell v. McBryde, 944 F.2d 229, 230 (5th Cir. 1991). Essentially, the immunity granted to the law clerk is derivative of the immunity afforded the judge and flows from that judicial immunity.

In this matter, after granting the motions to strike, the trial court considered the exceptions of no cause of action filed by Ms. Campbell and by the Judges. The Judges and Ms. Campbell maintain that the trial court correctly granted the exceptions after finding that they were entitled to absolute immunity. In granting the exception of no cause of action filed by the Judges, the trial court stated:

There is no question in my mind that supervision and control of a law clerk employed by a district court is something that would be within the jurisdiction of a district court judge․ The judge has to decide what cases to give to the clerk. The judge has to decide what he wants the clerk to do with regard to those cases. That clerk might have other duties, but all of the duties of the clerk of course are what the judge decides they should be or not be. So there's no doubt that with regard to the actions of the judges in this case in their contact with and in their relationship as the employer of Ms. Campbell that their actions are within their jurisdiction. That other factor is whether the actions are judicial in nature is what is—seems to be the most [contentious] in this case.

The court then discussed the four factors used to determine if acts are judicial in nature, stating:

I've already stated in reference to the jurisdiction issue about whether or who is involved in the assignment of work and supervision of law clerks and certainly that is a normal judicial function, the supervision, management, assignment, and control of a law clerk is certainly a normal judicial function. There's no one else to perform that function. There's no one else that should perform that function. So number one is clearly satisfied. Number two, is whether the acts occurred in the courtroom or appropriate adjunct spaces․ [I]f there's a complaint that a judge failed to supervise or conspired in supervision or in concealing wrongful acts of a law clerk the question is not whether the judge's actions take him or her out of immunity because you don't examine the act itself. You examine the nature and function of it, and that is the contact between the judge and the law clerk which is a judicial function. So that's where the inquiry with regard to immunity ends. It's not with attempting to separate a particular act out; it's the nature and function of the act which in this case is the allegation that the judges in their role of supervision failed to act properly. Number three, whether this controversy centered around a case pending before the court? Well, there's no doubt about that. That's exactly what the petition is about. That all of this was done to the prejudice of Mr. Palowsky in the case of Palowsky versus Cork. That's what the case is about. So that factor is met. The fourth factor, whether the acts arose directly out of a visit to the judge in his official capacity? Those—that particular factor of course addresses issues or situations where a judge may have made a ruling in the courtroom that someone was aggrieved by. Circumstances don't always permit the application of that, and as Malina says in some situations and I'm quoting from the Malina case; immunity is to be afforded even though one or more of the McAlester factors is not met, and certainly that is the case here. Malina also reminds us that the concept of immunity is to be broadly construed in favor of granting immunity. The allegations of the petition against the judges clearly fall inside these factors, and the judges in this case are granted absolute immunity in the law for their alleged acts of wrongdoing.

Then, in discussing whether Ms. Campbell was entitled to immunity, the trial court stated:

The question of whether a law clerk should be granted immunity is generally tied to the judge being granted immunity because they generally occur at the same time․ And what the courts say is that it doesn't make any sense to grant immunity to the judge and then leave the law clerk exposed to liability for being part of the same judicial process․ I recognize the difference in the facts of this case from the facts of most cases that you read about immunity of law clerks. As I said generally the judge gets sued, and when the judge gets sued you know the disgruntled litigant sues everybody that was involved in the process that he's disgruntled about. The difference in this case is that the lawsuit starts off against Ms. Campbell alleging that she committed wrongful acts with regard to Mr. Palowsky's case against Mr. Cork. The petition never alleges that Ms. Campbell took those actions at the direction of the judge, the judge assigned to the case or any other judge. Never says that. And then the amending petition adds the judges as conspirators and enablers. So it's in a factual basis chronologically it's not what you see in most of the other cases. But there is no distinction in the way that the actions of Ms. Campbell—there is no distinction in the application of immunity to the facts of this case, as alleged. There is no reason why I would be directed in another direction to apply the law of immunity to Ms. Campbell in this case because of the chronology of what the plaintiff says happened or didn't happen. Her actions, alleged actions, regarding mishandling and destroying documents in the plaintiff's lawsuit are nonetheless actions involving a pending case in the judicial process. So she under the law is entitled to absolute immunity as directed by the cases and by the body of jurisprudence that governs this concept.

Upon our de novo review, after carefully considering the applicable law and jurisprudence, in light of the underlying purpose of the judicial immunity doctrine, we conclude that Mr. Palowsky has stated a cause of action against Ms. Campbell. As previously stated, a law clerk's actions in assisting a judge to carry out judicial functions are covered by the doctrine of absolute immunity. The review, handling, and consideration of the record are all part of the judicial process. However, that immunity cannot extend to the independent act by a law clerk of intentionally destroying documents or withholding documents from the judge or jury without the judge's knowledge. The intentional destruction or concealment of court documents that was not at the direction or instruction of a judge, as alleged herein, is not part of the adjudicative process. Rather, it is the antithesis of the judicial function. Mr. Palowsky asserts that Ms. Campbell was “uncontrollable for years” and acting independently outside the scope of her judicial functions as an employee of the court. As alleged, Ms. Campbell was neither assisting the Judges in carrying out judicial functions nor acting at the direction of any judge and was acting in the clear absence of all jurisdiction. See Oliva, 839 F.2d at 40. Therefore, we conclude that Mr. Palowsky has stated a cause of action against Ms. Campbell insofar as he has asserted the intentional concealment or destruction of documents from the court outside of any directive from a judge, and we reverse the December 11, 2015 judgment that sustained Ms. Campbell's exception of no cause of action to the extent that it finds Ms. Campbell absolutely immune for the intentional destruction of court documents.

As to the Judges, we conclude that they have absolute judicial immunity from Mr. Palowsky's lawsuit. The allegations directed to the Judges in Mr. Palowsky's First Supplemental, Amended, and Restated Petition for Damages do not deprive them of judicial immunity. This immunity applies, “however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” Cleavinger, 474 U.S. at 199–200, 106 S.Ct. at 500 (quoting Bradley, 80 U.S. at 347). See also Mitchell, 944 F.2d at 230. Indeed, where a court has some subject-matter jurisdiction, there is sufficient jurisdiction for immunity purposes. Kemp ex rel. Kemp, 324 Fed.Appx. at 412. There is a meaningful distinction between judicial acts which occur in excess of jurisdiction, which receive judicial immunity, and those which take place wholly lacking jurisdiction, which do not. Id. at 412–13. As to the allegations against the Judges, even were they acting in excess of jurisdiction, they were not acting in the clear absence of jurisdiction. The Supreme Court has explained that “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the 'clear absence of all jurisdiction.’ ” Stump, 435 U.S. at 356–57, 98 S.Ct. at 1105 (quoting Bradley, 80 U.S. at 351).

Moreover, the actions or inactions of the Judges, in allegedly conspiring to conceal the actions of Ms. Campbell, would have been taken in their judicial capacity in working and interacting with Ms. Campbell within the parameters of the judicial process. There are no allegations of participation by the Judges in the destruction of documents and only allegations of knowledge by the Judges of the destruction of documents after the fact. The allegations against the Judges amount to a failure to properly supervise Ms. Campbell in the handling of cases before the court and the failure to reveal her actions once discovered. Looking at the nature and function of the actions of the Judges, and not the acts themselves, the Judges' actions encompass the supervision of and working with a law clerk on cases before them.⁶ Accordingly, we cannot find error and affirm the December 11, 2015 judgment of the trial court that sustained the Judges' exception of no cause of action and dismissed all claims against the Judges with prejudice.⁷

CONCLUSION

For the above and foregoing reasons, we reverse in part the December 11, 2015 judgment of the trial court insofar as it granted the motions to strike by the Judges and by Ms. Campbell with regard to Paragraphs 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 52C, 58, 61, 63, 68, 69, 71, 80, and 81 of Mr. Palowsky's amended petition. We affirm the judgment striking Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 39, 42, 52A, 52E, 59, 62, 64, 65, 66, 67, 70, 79, and 82. We also affirm the December 11, 2015 judgment of the trial court that sustained the Judges' peremptory exception raising the objection of no cause of action and dismissed all claims against the Judges with prejudice. Lastly, we reverse the December 11, 2015 judgment that sustained Ms. Campbell's peremptory exception raising the objection of no cause of action to the extent that it finds Ms. Campbell absolutely immune for the intentional destruction of court documents. Costs of this appeal shall be shared one-half by the plaintiff, Stanley R. Palowsky, III, individually and on behalf of Alternative Environmental Solutions, Inc., and one-half by the defendant, Allyson Campbell, and the defendants, Chief Judge H. Stephens Winters, Judge Carl V. Sharp, Judge J. Wilson Rambo, Judge Frederic C. Amman, and Judge Benjamin Jones.

DECEMBER 11, 2015 JUDGMENT ON MOTIONS TO STRIKE REVERSED IN PART AND AFFIRMED IN PART; DECEMBER 11, 2015 JUDGMENT DISMISSING DEFENDANT JUDGES AFFIRMED; DECEMBER 11, 2015 JUDGMENT DISMISSING DEFENDANT CAMPBELL REVERSED.

Attachment

Under the facts of this case, to the extent that the majority opinion finds that the judges herein are granted absolute immunity for their alleged acts of wrongdoing and affirms the trial court's judgment maintaining the judges' peremptory exception of no cause of action, I agree with the majority. I also concur in the majority opinion insofar as it affirms in part and reverses in part the trial court's judgment on the motions to strike by the judges and Ms. Campbell. I disagree, however, with the portion of the majority's opinion that reverses the trial court's judgment maintaining the peremptory exception of no cause of action urged by Ms. Campbell.

As the U. S. Supreme Court has recognized, few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction. Pierson v. Ray, 386 U.S. 547, 553–554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). Such immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1871). Judges are immune from damage claims arising out of acts performed in the exercise of their judicial functions, even when the judge is accused of acting maliciously. Mitchell v. McBryde, 944 F.2d 229, 239 (5th Cir. 1991). Moreover, the judge is absolutely immune for all judicial acts not performed in clear absence of all jurisdiction, however erroneous the act and however evil the motive. Mitchell v. McBryde, 944 F.2d at 230. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence of all jurisdiction. Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir. 1989). The concern for the integrity of the judicial process underlying the absolute immunity of judges also is reflected in the extension of absolute immunity to “certain others who perform functions closely associated with the judicial process.” Oliva v. Heller, 839 F.2d 37, 39 (2nd Cir. 1988), quoting Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985).

Thus, applying this analysis, courts have granted absolute immunity to court clerks where they were performing discretionary acts of a judicial nature. Oliva v. Heller, 839 F.2d at 39. In contrast to court clerks, who frequently perform ministerial functions, a law clerk generally performs discretionary acts of a judicial nature. Indeed, a law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge's own exercise of the judicial function. Oliva v. Heller, 839 F.2d at 40. For purposes of absolute judicial immunity, judges and their law clerks are as one. Oliva v. Heller, 839 F.2d at 40. Accordingly, when assisting the judge in carrying out judicial functions, the judge's law clerk is likewise entitled to absolute immunity. Mitchell v. McBryde, 944 F.2d at 230.

Applying these precepts to the instant case, the petitions herein allege that Ms. Campbell caused harm to plaintiff by maliciously and intentionally destroying, concealing, removing, withholding, and/or improperly handling court documents pertaining to civil litigation filed by plaintiff The petitions further allege that the judges caused harm to plaintiff by concealing and/or covering up Ms. Campbell's misdeeds, failing to properly supervise, investigate, or reprimand Ms. Campbell, and in allowing Ms. Campbell to withhold court documents in order to delay proceedings.

In rendering judgment, the trial court determined that there was no distinction in the application of immunity to both Ms. Campbell and the judges, finding that “[t]he question of whether a law' clerk should be granted immunity is generally tied to the judge being granted immunity because they generally occur at the same time.” With reference to the application of absolute judicial immunity to Ms. Campbell, the trial court held that “[h]er actions, alleged actions, regarding mishandling and destroying documents in the plaintiff's lawsuit are nonetheless actions involving a pending case in the judicial process [such that] under the law [she] is entitled to absolute immunity as directed by the cases and the body of jurisprudence that governs this concept.” I am constrained to agree.

In my view, the handling of evidence is incidental to the discharging of a judge's duties. Moreover, as the jurisprudence demonstrates, even if such handling (or mishandling) was performed with malice or wrongful intent resulting in the destruction of evidence, a law clerk is entitled to the same absolute immunity for civil liability afforded judges. See Mitchell v. McBryde, 944 F.2d at 230; Dellenbach v. Letsinger, 889 F.2d at 759. For these reasons, I respectfully disagree with the portion of the majority's opinion that reverses the trial court's judgment, which had maintained Ms. Campbell's peremptory exception of no cause of action.

For the reasons stated by Chief Judge Whipple, I concur in part and dissent in part. I further add that even taking into consideration all of the allegations that were stricken by this court, the defendants are still entitled to absolute immunity. In this case, the only damages that could be caused to the plaintiffs by any of the defendants would be in connection to the plaintiffs' lawsuit in the Fourth Judicial District Court. As to any court proceedings, it is without question that both the judge and the law clerk have absolute immunity. However, in accordance with Louisiana Code of Civil Procedure article 934, I would allow the plaintiffs an opportunity to amend their petition, as to Ms. Campbell only, to allege any facts whereby the plaintiffs were damaged by any action of Ms. Campbell that were not related to judicial proceedings.

I agree with the majority decision to reinstate the stricken paragraphs of the pleadings and finding the law clerk does not enjoy judicial immunity for her nonjudicial acts. From the remainder of the majority opinion, I dissent. I recognize that all of the allegations made in the petition, which are disturbing and injurious to the esteem and dignity of the judiciary, may be unprovable or provably false.¹ However, the procedural posture in which this matter is presented, an exception of no cause of action, requires that I make my decision accepting the well-pleaded facts in the petition as true. See McCarthy v. Evolution Petroleum Corp., 14-2607 (La. 10/14/15), 180 So.3d 252, 257.

Judicial immunity is of the highest order of importance in maintaining an independent judiciary, free of threats or intimidation. But it is a judge-created doctrine policed by judges. And while there are safeguards in the judicial process that reduce the need for private damage actions against judicial actors, when judicial actors perform non-judicial acts, they are not protected by this otherwise sweeping immunity doctrine. Cf. Mireles v. Waco, 502 U.S. 9, 11–12, 112 S.Ct. 286, 288, 116 L.Ed.2d 9 (1991). Whether an act is judicial or non-judicial is determined by “the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed.2d 331 (1978). “[T]he relevant inquiry is the ‘nature’ and ‘function’ of the act, not the ‘act itself.’ ” Mireles, 502 U.S. at 13, 112 S.Ct. at 288.

The petition alleges the law clerk “spoliated, concealed, removed, destroyed, shredded, withheld, and/or improperly ‘handled’ court documents.” The nature of these acts relate to maintenance of court records. The duty to maintain records in cases involves many non-judicial actors, and can only be considered a ministerial, not judicial, act. See Ex parte Commonwealth of Virginia, 100 U.S. 339, 348, 25 L.Ed. 676 (1879) (reasoning that jury selection was a ministerial rather than judicial function, even though performed by a judge, since the duty might as well have been committed by a private person). The allegations do not relate to the exercise of discretion in connection with an adjudicatory function. Consequently, I agree with the majority that the facts alleged in the petition, accepted as true to decide the exception of no cause of action, bring the cause of action against the law clerk outside the scope of judicial immunity.

As to the judges, the petition alleges they “aid[ed] and abet[ted] [the law clerk] by allowing her free rein to do as she pleased and then conspire[ed] to conceal [the law clerk's] acts.” For the same reasons the law clerk is not immunized for her non-judicial acts related to maintaining court records, the judges are not immunized for allegedly aiding, abetting, then concealing those acts. Failing to supervise a law clerk relative to a non-judicial act is not a judicial act for purposes of immunity.² Rather, the alleged failure to “supervise” in this context is more akin to an administrative responsibility, which is not within the scope of absolute judicial immunity. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436, 113 S.Ct. 2167, 2172, 124 L.Ed.2d 391 (1993). Thus, I likewise find the judges not immune from suit based on these allegations, accepted as true to decide the exception of no cause of action, and dissent from the majority's decision to the contrary.

Finally, the facts alleged in the petition, which, again, must be accepted as true for purposes of the exception, arguably satisfy the essential elements of a crime, namely injuring public records, then concealing it. See La. R.S. 14:132; see also La. R.S. 14:25. The doctrine of judicial immunity does not shield judicial actors from civil liability for criminal acts. See Mireles, 502 U.S. at 9–10, n.1, 112 S.Ct. at 287, n.1. Many decisions in Louisiana recognize actions based on malice or corruption are outside the scope of judicial immunity. E.g., McCoy v. City of Monroe, 32,521 (La. App. 2 Cir. 12/8/99), 747 So.2d 1234, 1241, writ denied, 00-1280 (La. 3/30/01), 788 So.2d 441; Moore v. Taylor, 541 So.2d 378, 381 (La. App. 2 Cir. 1989); Cleveland v. State, 380 So.2d 105 (La. App. 1 Cir. 1979); Conques v. Hardy, 337 So.2d 627 (La. App. 3d Cir. 1976); Berry v. Bass, 157 La. 81, 102 So. 76 (1924); State ex rel. Duffard v. Whitaker, 45 La. Ann. 1299, 14 So. 66 (1893). While later cases suggest judicial immunity extends even to judicial acts performed with malice, those cases do not immunize judicial actors from criminal conduct grounded in malice or corruption. See Martin v. Joan Malbrough & Associates, 13–0864, 2014 WL 651535, p.1 (La. App. 1 Cir. 2/18/14). Extending the doctrine of judicial immunity to include civil liability for alleged criminal conduct, as in this case, risks undermining the public's trust in the judiciary, which I cannot countenance.

FOOTNOTES

1.   The petition alleges that the destruction of documents occurred in 2014, at which time Judge Jones was a duly-elected judge of the Fourth JDC. The petition further asserts that after March 2015, Judge Jones has been employed as the judicial administrator for the Fourth JDC and acts as a “supernumerary” judge.

2.   Additionally, Ms. Campbell and the Judges filed motions to stay discovery until their motions to strike and exceptions could be addressed. Following a hearing on the motions to stay discovery, the trial court granted the motion and stayed discovery pending the disposition of the motions to strike and exceptions. Mr. Palowsky filed an application for supervisory writs with the Court of Appeal, Second Circuit, which application was denied. Mr. Palowsky then sought a writ of certiorari with the Louisiana Supreme Court. The supreme court granted Mr. Palowsky's writ application and, on November 3, 2015, issued a per curiam order directing the trial court to hear the exceptions of no cause of action and the motions to strike, but defer the hearing on the remaining exceptions.

3.   A copy of the First Supplemental, Amended, and Restated Petition for Damages is attached hereto as “Attachment A.”

4.   Federal Rule of Civil Procedure 12(f) provides, in pertinent part: “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

5.   Ms. Campbell and the Judges also filed, as part of their motions to strike, requests for contempt and for sanctions. However, the sanctions and contempt requests have been stayed pending resolution of this appeal.

6.   Even though judges may have judicial immunity, this does not preclude litigants from seeking other remedies. See Mireles, 502 U.S. at 10 n.1, 112 S.Ct. at 287 n.1 (where the Court recognized that a judge is not absolutely immune from criminal liability, from a suit for prospective injunctive relief, or from a suit for attorney fees authorized by statute).

7.   Further, because we conclude that the Judges are absolutely immune from suit herein, we pretermit discussion of Mr. Palowsky's fourth assignment of error wherein he contends that the trial court erred in refusing to give him the opportunity to amend his petition to state a cause of action.

1.   The gravity of these allegations cannot be overemphasized, as one making them falsely is subject to being held accountable for doing so. See, e.g., La. Code Civ. Pro. art. 863; Supreme Court Rules—Rule 19, § 6.

2.   Even if supervising the law clerk in this case was considered a judicial act, reason dictates that only the presiding judge actually supervising the law clerk has immunity. Here, all the judges are draped with immunity, even those not presiding over the case and directly supervising the law clerk.

MCCLENDON, J.

Higginbotham, J. concurs in part and dissents in part for reasons assigned by Chief Judge Whipple. Welch, J. concurs in part and dissents in part for reasons assigned by J. Whipple. Whipple, C.J. concurs in part and dissents in part for reasons assigned. Pettigrew, J. concurs Penzato, J. concurs Guidry, J. concurs Chutz, J. concurs Crain, J. dissents and assigns reasons Holdridge J., concurs in part and dissents in part for reasons assigned by C.J. Whipple assigns additional reason