In re Lickman

• Decision Date: 06 February 2004
• Docket Number: Bankruptcy No. 98-02632-6W7.,Adversary No. 01-170.
• Citation: In re Lickman, 304 B.R. 897 (Bankr. M.D. Fla. 2004)
• Parties: In re Paula LICKMAN, Debtor. Marie Henkel, Plaintiff, v. Paula Lickman, et al., Defendants.
• Court: U.S. Bankruptcy Court — Middle District of Florida

304 B.R. 897

In re Paula LICKMAN, Debtor Marie Henkel, Plaintiff, v. Paula Lickman, et al., Defendants.

Bankruptcy No. 98-02632-6W7.

Adversary No. 01-170.

United States Bankruptcy Court, M.D. Florida, Orlando Division.

February 6, 2004.

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Gerald J. D'ambrosio, Boca Raton, FL, for Debtor.

MEMORANDUM DECISION AND ORDER GRANTING MOTIONS TO QUASH SUBPOENAS

MICHAEL G. WILLIAMSON, Bankruptcy Judge.

THIS PROCEEDING came on for consideration on the following motions to quash the three subpoenas ("Subpoenas"), which were caused to be issued on or about December 23, 2003, by one of the defendants, Robert Daniels a/k/a Robert Dizak ("Daniels"), to three individuals — Sean Concannon, Yvonne Shepherd, and Cheryl Thompson — requiring them to appear at depositions: (1) Motion to Quash Subpoena and for Sanctions (Doc. No. 245) filed by Sean Concannon; and (2) Emergency Motion of Bankruptcy Court Employees, Yvonne Shepherd and Cheryl Thompson, to Quash Deposition Subpoenas Issued by Robert Daniels, and for Protective Order, on in the Alternative, Motion for Order Requiring Defendant Daniels to Show Cause Why Subpoenas Should not be Quashed (Doc. No. 246) (collectively, "Motions to Quash"). Mr. Daniels filed an Opposition to Mr. Concannon's Motion to Quash (Doc. No. 250). Since the depositions were scheduled for January 16, 2004, this Court entered an Order on January 13, 2004 (Doc. No. 251), temporarily quashing the Subpoenas pending resolution of the Motions to Quash, as well as allowing any interested party to respond by January 23, 2004. Subsequently, on January 20, 2004, Daniels filed his Opposition to Thompson's and Shepherd's Motion to Quash (Doc. No. 254) ("Response").

Factual Background

As numerous decisions have been reported detailing the lengthy history of this case and adversary proceeding, only a brief recitation of the relevant facts is necessary.¹ This has been a heavily contested bankruptcy case and proceeding whereby certain individuals have sought to interfere with the orderly administration of the estate by the Chapter 7 trustee. On July 25, 2003, this Court found the defendants liable for actions taken to assert or usurp control over property of the estate in violation of the automatic stay. In re Lickman, 297 B.R. 162 (Bankr.M.D.Fla.2003) ("Decision"). Accordingly, a permanent injunction and judgment was entered in this adversary proceeding against the defendants. The defendants were permanently enjoined from initiating and prosecuting collateral attacks on the trustee's administration of the debtor's estate. Additionally, significant monetary sanctions were also imposed against the defendants to compensate the estate for the harm resulting from their actions. The defendants, including Daniels, appealed the judgment and Decision on or about August 1, 2003 and August 4, 2003 (Doc. Nos. 189, 192, 193 and 198). The appeals are currently pending before the District Court. On November 25, 2003, this Court denied the defendants' motions for a stay pending appeal. In re Lickman, 301 B.R. 739 (Bankr.M.D.Fla.2003). Further, District Court Judge Presnell, in his order dated August 4, 2003 (Doc. No. 201 in this adversary proceeding) enjoined the defendants from not only initiating any new action related to estate property but also conditioned any such action upon first obtaining leave from Judge Presnell as well as requiring the defendants to attach copies of his orders to any new filing by the defendants.

During the course of this proceeding, the defendants had attempted, without success, to have former Bankruptcy Judge C. Timothy Corcoran, III recused from this case. In re Lickman, 288 B.R. 151 (Bankr.M.D.Fla.2003); In re Lickman, 284 B.R. 299 (Bankr.M.D.Fla.2002).² Cheryl Thompson was the law clerk to Judge Corcoran and Yvonne Shepherd was Judge Corcoran's judicial assistant at the time the Decision was rendered. At the time the subpoenas were issued, both Thompson and Shepherd were full-time employees of the bankruptcy court. Mr. Concannon is the attorney for the Chapter 7 Trustee.

Daniels' main reason for deposing Thompson and Shepherd is ostensibly to determine if Concannon visited Judge Corcoran's chambers, "assisted" in writing the decisions and made ex parte calls to chambers. See Response, ¶¶ 6 to 12.

Legal Discussion

The Motions to Quash present two principal legal issues. First, there is the issue of whether a judicial assistant and a law clerk of a United States Bankruptcy Judge are immune or otherwise protected from compulsory civil process purporting to require their appearance and testimony about their official activities, including their knowledge, if any, of the decision making process of the bankruptcy judge for whom they worked.

The second issue to be decided is whether the "Divestiture Rule" precludes the enforcement or issuance of the Subpoenas as this proceeding is under appeal. For the foregoing reasons, the Court finds on both grounds that the Motions should be granted and the Subpoenas quashed.

A. Judicial and Quasi-Judicial Immunity.

Judicial and quasi-judicial immunity governs the first issue. Judge Corcoran was a judicial officer duly appointed as a United States Bankruptcy Judge for the judicial branch of the government. It is well settled that judges are absolutely immune from civil liability for their "judicial acts." Wahl v. McIver, 773 F.2d 1169, 1172 (11th Cir.1985). "The judicial or quasi-judicial immunity available to federal officers is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief." Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir.1996) (internal citations omitted). This immunity applies "however erroneous the act may have been, and however injurious in its consequences...." Id. The immunity also applies when such judicial acts "are in excess of [their] jurisdiction and are alleged to have been done maliciously or corruptly...." Wahl, 773 F.2d at 1172 (quoting Bradley v. Fisher, 80 U.S.(13 Wall.) 335, 351, 20 L.Ed. 646 (1871)). The purpose of judicial immunity is

for 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.... 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. Oliva v. Heller, 839 F.2d 37, 39 (2d Cir.1988) (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)).

Here, Daniels is complaining of decisions rendered by Judge Corcoran and wants to depose his staff and the Trustee's attorney to determine if there was any impropriety surrounding Judge Corcoran's decisions in this case. Clearly, Judge Corcoran was a sitting judge when he rendered his decision.³ There can be no real dispute that the rendering of his decision was also clearly a "judicial act."⁴

The concern for the integrity of the judicial process also extends to those who "perform functions closely associated with the judicial process." Oliva, 839 F.2d at 39 (citation omitted). Courts follow the "functional approach" to determine if a person is entitled to immunity. Under this approach, immunity flows from the "nature of the responsibilities of the individual official." Id. (citing Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985)). Indeed, courts have consistently granted absolute immunity to a law clerk serving for a judge. Oliva, 839 F.2d at 39-40; Moore, 96 F.3d at 1244-45; Mitchell v. McBryde, 944 F.2d 229, 230-31 (5th Cir.1991); Parkinson v. U.S., 175 F.Supp.2d. 1233, 1239 (D.Idaho 2001); Reisner v. Stoller, 51 F.Supp.2d 430, 444 (S.D.N.Y.1999); Fariello v. Campbell, 860 F.Supp. 54, 68 (E.D.N.Y.1994); In re M.E.S., Inc., 148 B.R. at 3; DeFerro v. Coco, 719 F.Supp. 379 (E.D.Pa.1989); Bradley v. U.S., 84 Fed.Appx. 492 (6th Cir.2003). The rationale for extending absolute immunity to a law clerk is because "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.

Daniels argues that judicial immunity is irrelevant in discovery. Assuming arguendo that a suit against Judge Corcoran had not been filed, it is still clear that Daniels' defense in his appeal is based on judicial misconduct. The policy behind immunity does not merely extend to suits, it also extends to protection against discovery. If judicial immunity were applicable, then it would be senseless and disruptive to allow for discovery. The Supreme Court has spoken clearly in this area. Until immunity is resolved, discovery shall not be allowed because "inquiries of this kind can be peculiarly disruptive of effective government." Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)(holding the discovery is improper until the court resolves the question of immunity); See also Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)(citing to Harlow); Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 382-83 (5th Cir.1987)("the Supreme Court noted that the protection afforded government officials by the doctrines of absolute and qualified immunity would be greatly depreciated if it did not include protection from discovery.... [C]lose control of discovery is essential to the preservation of meaningful official immunity [internal citations omitted]."); LeClerc v. Webb, 2003 WL 21026709 (E.D.La. May 2, 2003)(court granted stay of discovery pending determination of immunity). This makes sense, because after all, if a judge cannot be compelled to testify in a case over which he or she presides in regards to her or his decision making, then a disgruntled litigant should not be allowed to circumvent this by compelling the judge's staff to so...