Disabled Woman Can’t Sue Judge Who Raided Settlement

By Samson Habte

The conservator for a disabled woman who received a large medical malpractice settlement can’t sue an ex-judge who presided over the conservatorship proceeding and helped his nephew win a $326,000 contract to build a handicap-accessible home for the woman, the Mississippi Supreme Court ruled Sept. 7 ( Newsome v. Shoemake , 2017 BL 314721, Miss., No. 2016-CA-00280-SCT, 9/7/17 ).

The court said the judge—who was removed from the bench for his conduct and subsequently imprisoned for obstructing a criminal probe into his actions—was totally immune from civil liability to Marilyn Newsome, conservator for her disabled daughter, Victoria.

The decision is the latest in a long line of cases that affirm the robustness of the judicial immunity doctrine, which existed at common law for centuries and has been interpreted expansively since it was recognized by the U.S. Supreme Court in 1872.

Voting unanimously, the justices said the immunity doctrine barred all of Newsome’s claims against Joe Dale Walker, a former chancery court judge. Walker was removed from the bench for his conduct in conservatorship proceedings held to distribute a $3 million settlement that Victoria obtained for the medical malpractice that rendered her disabled.

"[E]ven if Walker did act corruptly in his handling of the conservatorship, under this Court’s well-established precedent, he is immune from civil liability,” Justice James W. Kitchens wrote.

The court also dismissed claims that Newsome brought against another judge accused of conspiring with Walker. That judge, David Shoemake, is still on the bench, having survived an impeachment effort last year.

The lawsuit named three other individuals, including a lawyer, Keely McNulty, who clerked for both of the judges and was accused of using her position as Victoria’s guardian ad litem to assist Walker in the alleged scheme to steer Victoria’s special needs funds to the judge’s nephew.

McNulty was also a key player in a federal grand jury probe that looked into the irregularities that occurred in Victoria’s case and led to Walker’s guilty plea on charges alleging witness tampering, which he was sentenced to five years in prison.

The charge was based on Walker’s attempt to influence McNulty’s testimony to the grand jury, which had subpoenaed her to appear with documents that showed how the judge had used ex parte orders in the conservatorship case to steer Victoria’s settlement funds to his nephew’s construction company.

Judicial Bid-Rigging?

After Victoria received the $3 million settlement, her mother Marilyn initiated a conservatorship action to distribute those funds.

Marilyn petitioned Walker, who was presiding over the case, to authorize her to spend $145,000 to buy a preexisting home for Victoria. But Walker denied that petition and instead decreed that settlement funds be put toward the construction of a new, handicap-accessible “special needs home” for Victoria.

Walker then tasked McNulty—who represented the conservatorship and Marilyn in her role as conservator—with obtaining bids from construction firms interested in building the new home.

Walker’s nephew, Chad Teater, was one bidder. Teater said he could do the work for just under $250,000. According to the Department of Justice, Walker then “reviewed the bids in his chambers” and “instructed Teater to raise his bid” after discovering it was lower than the others. Teater upped his bid by $23,500.

Walker then transferred the case to Shoemake “for the limited purpose of approving” the bid. In court papers, Marilyn said Walker did that because he knew his colleague would approve the bid “without conducting any due diligence.”

After getting the case back, Walker appointed McNulty to be Victoria’s guardian ad litem, even though McNulty was still representing Marilyn in her role as conservator. The complaint said that after assuming those dual roles, McNulty took additional steps to help the judge with the plot to enrich his nephew.

Four days after McNulty was appointed as Victoria’s guardian ad litem, she moved for authorization of an additional $23,000 payment to Walker’s nephew to cover the costs of tools allegedly stolen from the construction site for the new home.

That same day, McNulty—acting at Walker’s alleged request—filed a petition that asked the court to hold Marilyn in contempt as conservator for taking actions “adverse to the personal and financial health and well-being” of her daughter.

Jig is Up

A judicial performance commission launched an inquiry into the conduct of the judges and directed them to recuse themselves from the conservatorship case.

Federal prosecutors also began investigating the matter. They subpoenaed McNulty to appear before a grand jury and bring all documents relating to the conservatorship. According to the DOJ, Walker then met with his former clerk and told her the documents relating to his nephew’s first bid “needed to be ‘somewhere else.’”

Walker pleaded witness tampering and was sentenced to five months in prison. He was also removed from the bench as a result of the judicial ethics commission’s inquiry.

The commission also sought Shoemake’s removal, but the Mississippi Supreme Court concluded that was unwarranted and suspended him from office for one month.

No Money from Judges (Again)

Although Walker lost his seat on the bench and Shoemake was temporarily suspended without pay, neither man suffered significant monetary penalties in connection with the judicial performance commission reviews they underwent.

Walker had to cover the costs of his inquiry, which totaled $3,392. Shoemake was fined $2,500 and assessed costs of $5,882.

When the Mississippi Supreme Court reviewed Shoemake’s judicial performance case in 2016, it refused to order the judge to pay restitution to Victoria. The court said that was “not one of the sanctions permitted” in judicial performance matters, which exist to “maintain the dignity of the judiciary and to guard against future excesses, not to punish individual judges.”

The court said it will “leave the decision of whether or not to pursue those or similar damages with Victoria.”

Marilyn Newsome did pursue those damages on Victoria’s behalf in this action, but to no avail—at least with respect to claims she asserted against the judges. (The complaint accused the judges of conspiracy, fraud, inflicting emotional distress, and violating her civil rights under 42 U.S.C. § 1983; and it accused McNulty of many of those same torts as well as malpractice and fiduciary breaches).

The court said judicial immunity insulated Walker and Shoemake from civil liability—and that both men had already “experienced '[t]he primary remedy available” for judicial misconduct, a complaint filed with the performance commission.

Justice Leslie D. King, who dissented in part from the court’s refusal to order restitution in Shoemake’s judicial performance case, concurred in the finding “that judicial immunity applies” to this civil action but wrote separately to express the same concern he raised in his prior dissent.

“If this Court is going to dismiss cases based on judicial immunity, offering the alternative remedy of a complaint with the Commission, we need to actually provide a such a remedy in judicial performance cases,” King wrote. “In this case, we did not.”

Bulletproof on the Bench?

Judicial immunity traces its roots to medieval Europe, where it was recognized to discourage litigants from attacking court rulings by suing judges.

As early as 1872, the U.S. Supreme Court recognized the principle that judges should “be free to act upon [their] own convictions, without apprehension of personal consequences” for their decisions. In a frequently cited 1978 decision, the high court held that the doctrine precluded a lawsuit against a judge who approved a mother’s petition to have her “somewhat retarded” minor daughter sterlized.

Newsome argued in her briefs that the doctrine “was not created in order to provide protection to corrupt judges who use the law for their personal gain or to take financial advantage of a ward and disabled person.”

The U.S. Supreme Court has delineating the bounds of the doctrine in a series of cases, holding that immunity will not apply to (1) “non-judicial actions,” or (2) acts taken “in the clear absence of all jurisdiction.”

Newsome argued that the actions of Walker and Shoemake fell within those exceptions—and she went further by asking that the court “review the doctrine of judicial immunity de novo” if it concluded the judges were covered.

In their briefs, the defendants said that was a short-sighted argument. Walker said the “importance of judicial immunity extends beyond its application to this suit and to this judge,” and Shoemake said Newsome’s request that the court “refashion” the doctrine was “inappropriate.”

Walker further asserted that the doctrine “protects the righteous as well as the dishonest,” and Shoemake contended that “immunity from suit is so absolute that it cannot be defeated by an allegation that the judge acted in a malicious, corrupt, or patently erroneous manner—or even pursuant to a conspiracy.”

The justices sided with the defendants, concluding that the doctrine clearly applied to their conduct.

AG Had No Conflict

Newsome also appealed a trial court order that denied her motion to disqualify the Mississippi Attorney General’s Office, which represented Shoemake in this matter because of his status as a sitting judge.

Newsome said the AG is tasked with prosecuting those who “exploit vulnerable persons,” and she argued that if the AG had investigated this matter, it represented her and was thus precluded from representing her adversary under Mississippi Rule of Professional Conduct 1.9 (duties to former clients).

The court disagreed. “Representation of Judge Shoemake as a public official was within the authority of the Attorney General,” it said. “Victoria Newsome was never and could never be a ‘client’ of the Attorney General as contemplated by the Mississippi Rules of Professional Conduct, since prosecution of cases is solely in the name of the State of Mississippi.”

The Stubbs Law Firm PLLC represented Newsome.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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