Filed: Mar. 12, 1997
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 3-12-1997 Ernst v. Child & Youth Ser Precedential or Non-Precedential: Docket 93-1929,93-1930,94-1273 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Ernst v. Child & Youth Ser" (1997). 1997 Decisions. Paper 60. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/60 This decision is brought to you for free and open access by the Opinions o
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 3-12-1997 Ernst v. Child & Youth Ser Precedential or Non-Precedential: Docket 93-1929,93-1930,94-1273 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Ernst v. Child & Youth Ser" (1997). 1997 Decisions. Paper 60. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/60 This decision is brought to you for free and open access by the Opinions of..
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Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
3-12-1997
Ernst v. Child & Youth Ser
Precedential or Non-Precedential:
Docket 93-1929,93-1930,94-1273
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"Ernst v. Child & Youth Ser" (1997). 1997 Decisions. Paper 60.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/60
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
N0S. 93-1929, 93-1930 and 94-1273
SYLVIA ERNST
Appellant in No. 93-1929
v.
CHILD AND YOUTH SERVICES OF CHESTER COUNTY;
CAROL SCHRAVAZANDE; ARDEN OLSON; WAYNE STEVENSON; RITA BORZILLO;
THE JUDICIARY OF THE COMMONWEALTH OF PENNSYLVANIA
*Sylvia Ernst, Administrator of the Estate of Susanne Ernst,
for Susanne Ernst
*(Amended as per the Court's 5/31/96 Order)
SYLVIA ERNST
v.
CHILD AND YOUTH SERVICES OF CHESTER COUNTY;
CAROL SCHRAVAZANDE; ARDEN OLSON, WAYNE STEVENSON; RITA BORZILLO;
THE JUDICIARY OF THE COMMONWEALTH OF PENNSYLVANIA;
*Sylvia Ernst, Administrator of the Estate of Susanne Ernst
for Susanne Ernst
Rita K. Borzillo,
Appellant in No. 93-1930
*(Amended as per the Court's 5/31/96 Order)
SYLVIA ERNST
v.
CHILD AND YOUTH SERVICES OF CHESTER COUNTY;
CAROL SHRAVAZANDE; ARDEN OLSON, WAYNE STEVENSON; RITA BORZILLO;
THE JUDICIARY OF THE COMMONWEALTH OF PENNSYLVANIA;
*Sylvia Ernst, Administrator ofthe Estate of Susanne Ernst
for Susanne Ernst
Rita K. Borzillo, Esq.
Appellant
*(Amended as per the Court's 5/31/96 Order)
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 91-cv-03735)
Argued June 12, 1996
BEFORE: STAPLETON, GREENBERG, and ALDISERT, Circuit Judges
(Opinion Filed March 12, 1997)
Edward A. Hartnett (Argued)
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
Attorney for Sylvia Ernst
Appellant in No. 93-1929
Robert B. Gidding (Argued)
44 Union Avenue
Bala Cynwyd, PA 19004
Attorney for Sylvia Ernst
Cross Appellee in Nos. 93-1930
and 94-1273
Thomas L. Whiteman (Argued)
Office of County Solicitor
2 North High Street
Courthouse, Suite 7
West Chester, PA 19380
Attorney for Carol Schravazande
Appellee\Cross Appellant
Joseph P. Green, Jr. (Argued)
Duffy & Green
10 North Church Street, Suite 307
West Chester, PA 19280
Attorney for Rita Borzillo
Appellee\Cross Appellant
David M. Donaldson (Argued)
Supreme Court of Pennsylvania
Administrative Office of PA Courts
1515 Market Street, Suite 1414
2
Philadelphia, PA 19102
Attorney for Judiciary of the
Commonwealth of Pennsylvania
Appellee\Cross Appellant
Thomas W. Corbett, Jr.
Attorney General
Gregory R. Neuhauser (Argued)
Senior Deputy Attorney General
Calvin R. Koons
Senior Deputy Attorney General
John G. Knorr, III
Chief Deputy Attorney General
Office of Attorney General of PA
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorneys for Commonwealth of
Pennsylvania, Amicus Curiae\Appellee\
Cross Appellant
OPINION OF THE COURT
STAPLETON, Circuit Judge:
A grandmother alleges in this civil rights action that
she was deprived of the custody of her granddaughter for five
years in violation of rights secured by the Constitution. The
defendants are Chester County Children & Youth Services (“CYS”),
individual CYS caseworkers, and an attorney retained by CYS to
represent it in the judicial proceedings that transferred custody
to the state. We are called upon to decide whether and to what
extent child welfare workers and attorneys who represent child
welfare agencies are entitled to absolute immunity for actions
taken in connection with dependency proceedings in state court.
This is an issue of first impression in this circuit. Like the
3
other courts of appeals that have addressed the issue, we hold
that child welfare workers and attorneys who prosecute dependency
proceedings on behalf of the state are entitled to absolute
immunity from suit for all of their actions in preparing for and
prosecuting such dependency proceedings.
I. Facts1
Sylvia Ernst (“Ernst”) was the sole guardian of her
minor granddaughter Susanne from infancy until the child was nine
years old.2 At about that time, during the 1987-88 school year,
a number of people in the Downingtown, Pennsylvania area where
Ernst and Susanne lived became concerned about Susanne's well-
being. A mover who had moved Ernst and Susanne into an apartment
in Downingtown contacted police and expressed concern that there
was something wrong in the relationship between Ernst and
Susanne. He reported that Susanne looked unwell and appeared too
young to be Ernst's daughter.
The Downingtown police conducted an investigation and
learned that the Family Court of Nassau County, New York, had
issued warrants for the arrest of Ernst and her daughter for
child neglect and that a petition for custody of Susanne had been
filed in 1981 but never served on Ernst. Nassau County officials
informed the Downingtown police that the warrants had been
1. We accept the extensive findings of fact made by the district
court after a trial on the merits.
2. Susanne's father is believed to be deceased, and her mother
has had only occasional telephone contact with Susanne and Ernst
since Susanne was two years old.
4
vacated and the petition for custody of Susanne had been
withdrawn. The police informed a CYS employee of its
investigation and of the status of the warrants, but the CYS
personnel responsible for the decision to seek custody of Susanne
were apparently unaware at the time of their decision that the
Nassau County warrants had been withdrawn.
School officials at several schools Susanne attended
became concerned about Susanne's frequent tardiness, poor
attendance, and inability to separate from Ernst at the start of
the school day. The days would often begin with a scene outside
Susanne's classroom during which Susanne would cry and scream and
refuse to let go of her grandmother. On May 3, 1988, after
another morning tantrum, officials at the East Ward School in
Downingtown contacted CYS and requested immediate intervention.
CYS believed Susanne’s attachment to Ernst was sufficiently
extreme to be unhealthy and filed a petition that same day
seeking an adjudication of dependency3 and emergency custody of
Susanne. After an immediate detention hearing, Judge Stively of
the Chester County Court of Common Pleas found that a prima facie
3. A child is "dependent" under Pennsylvania law if he or she is
"without proper parental care or control, subsistence, education
as required by law, or other care or control necessary for his
physical, mental, or emotional health, or morals." 42 Pa. C.S.A.
§ 6302.
The dependency petition filed for Susanne contained a
number of false allegations regarding her attendance records and
the Nassau County warrants and custody petition. However, the
Court of Common Pleas later ruled that the errors were harmless
because they did not form the basis of its subsequent
adjudication of dependency.
5
case of dependency had been presented, and ordered Susanne placed
in a psychiatric institution for a complete evaluation.
At a subsequent hearing on May 18, 1988, the parties
stipulated to an adjudication of dependency, which resulted in
temporary legal custody remaining with CYS. The stipulation
provided that CYS’s goal was the reunification of the family and
that Ernst could receive counseling and treatment at the
institution at which Susanne was being treated.
CYS retained custody of Susanne for the next five
years. During that time, Ernst and CYS waged an intense legal
battle over Susanne’s dependency status and custody. They also
developed an extremely contentious relationship. CYS caseworkers
found Ernst to be uncooperative, antagonizing, and unwilling to
acknowledge her parenting problems. They also complained that
she frequently made negative comments about CYS and Susanne’s
foster families during visits with Susanne. As CYS caseworkers
became increasingly frustrated with Ernst, they sought and
obtained restrictions on her visits with Susanne. Ultimately,
with the approval of the Chester County Court of Common Pleas and
the Superior Court of Pennsylvania, they changed CYS’s goal for
Susanne from family reunification to long-term foster placement.
Meanwhile, Susanne occupied eight different placements at
various foster homes and institutions. Ultimately, her emotional
and intellectual development deteriorated significantly.
Finally, in April 1993, a new judge assigned to review
Susanne's placement recognized that "[t]he adversarial air of the
6
proceeding [concerning Susanne's dependency] ... at times ...
captured the focus of many of those involved in this case instead
of focusing on Susanne." Juvenile No. 83 CS 88, Order of April
26, 1993, Op. at 2. Concluding that "[w]e have come to the point
where state intervention in Susanne's life is now doing more harm
than good," the court ordered that physical custody of Susanne be
returned to Ernst, with legal custody remaining with CYS. Ernst
was granted legal custody on November 17, 1993.
During the pendency of the state court proceedings,
Ernst filed this action in federal court under 42 U.S.C. § 1983
against CYS, various CYS caseworkers who were involved in
Susanne’s case (the “CYS defendants”), three officials from the
Downingtown Area School District, and Rita Borzillo, a private
attorney who represented CYS throughout Susanne’s dependency
proceedings. Ernst’s complaint alleged (1) violation of
procedural and substantive due process by all defendants for
their improper "seizure" of Susanne; (2) violation of substantive
due process by CYS, the CYS defendants, and Borzillo for the
imposition of restrictions on visitation and for the
recommendation of long-term placement instead of reunification;
(3) violations of procedural due process in the course and
conduct of state court proceedings; and (4) violation of the
First Amendment by the Pennsylvania statute that presumptively
closes juvenile dependency proceedings to the public. The
district court joined the Judiciary of the Commonwealth of
Pennsylvania to defend the First Amendment claim.
7
The district court granted summary judgment to the
Downingtown School officials on statute of limitations grounds,
and to all defendants on all claims alleging procedural due
process violations before May 24, 1991 on the ground that those
claims had been fully and fairly litigated in state court. The
court granted partial summary judgment to the CYS defendants and
Borzillo, ruling that they were entitled to absolute immunity
"insofar as they acted in their prosecutorial capacity of filing
petitions and making recommendations to the court." The court
held that the CYS defendants were not entitled to absolute
immunity, however, for actions taken in their capacities as
social workers formulating recommendations to be made to the
court. The court further held that Borzillo was not entitled to
absolute immunity for actions taken in an "extra-prosecutorial"
capacity.
A bench trial ensued on the claims that survived
summary judgment. After the trial, the court granted judgment to
CYS, the CYS defendants, and the Judiciary of Pennsylvania.
Although the court criticized the CYS defendants for flawed
social work practice and inability "to submerge their personal
views in dealing with a difficult woman" and focus on Susanne's
welfare, Ernst v. Chester County Children & Youth Servs., No.
CIV. A. 91-3735,
1993 WL 343375, at *23 (E.D. Pa. Sept. 3, 1993),
it ultimately concluded that the CYS defendants' actions "were
not so devoid of professional judgment or so clearly outrageous
as to impose liability for constitutional violations.”
Id. The
8
court held that CYS was not liable for any violations by the CYS
defendants or Borzillo because Ernst had not shown that the
actions were done by an official with policy-making authority or
pursuant to a "policy" or "custom" of CYS. Finally, the district
court held that Ernst lacked standing to bring her First
Amendment challenge to Pennsylvania's juvenile court closure
provision because she could not raise the right of the “third-
party” public and press to access to the courts.
On the other hand, the court granted judgment in favor
of Ernst against Borzillo. The court held that Borzillo, who was
a state actor for purposes of § 1983 while she represented CYS,
violated Ernst's substantive due process rights when she sought
appellate review of an order granting Ernst an unsupervised visit
with Susanne. The court found that Borzillo challenged the order
primarily out of "animosity and anger at Ernst's small victory"
in securing permission for an unsupervised visit.
Id. at *25.
Nevertheless, the court found that the harm suffered by Ernst as
a result of Borzillo’s actions was de minimis, consisting only of
the difference between the value of the unsupervised visit
ordered and the supervised visit Ernst actually had with Susanne,
and awarded only nominal damages and attorneys’ fees.
Ernst timely appealed the district court's judgments
against her on the substantive due process and First Amendment
claims, and Borzillo cross-appealed. We will affirm the
judgments against Ernst in favor of the CYS defendants, albeit on
the alternative ground that the CYS defendants are absolutely
9
immune for all of their actions in preparing for and prosecuting
Susanne’s dependency proceedings. We will also affirm the
judgments in favor of CYS and the Judiciary of Pennsylvania.
However, we will reverse the judgment against Borzillo on the
ground that she is entitled to absolute immunity for the actions
for which she was held liable by the district court.
II. Jurisdiction
Because the federal courts are courts of limited
jurisdiction, we must first satisfy ourselves that we have
jurisdiction over this appeal and cross-appeal.
A. Rooker-Feldman Doctrine
The CYS defendants contend that the district court
lacked jurisdiction to entertain Ernst’s suit under the Rooker-
Feldman doctrine, which prohibits federal courts from exercising
"subject matter jurisdiction to review final adjudications of a
state's highest court or to evaluate constitutional claims that
are 'inextricably intertwined with the state court's [decision]
in a judicial proceeding.'" FOCUS v. Allegheny County Court of
Common Pleas,
75 F.3d 834, 840 (quoting Blake v. Papadakos,
953
F.2d 68, 71 (3d Cir. 1992) (alteration in original); District of
Columbia Ct. of Appeals v. Feldman,
460 U.S. 462, 483 n.16
(1983)). According to the CYS defendants, the Rooker-Feldman
doctrine precluded the district court from hearing Ernst’s § 1983
claims because to decide those claims required the court to
10
determine whether the state courts correctly adjudicated Susanne
a dependent. We disagree, and find Rooker-Feldman inapplicable
here.
The Rooker-Feldman doctrine is based on the statutory
provision that grants the Supreme Court jurisdiction to review
the decisions of the highest state courts for compliance with the
Constitution. See 28 U.S.C. § 1257. Because this jurisdiction
is reserved exclusively to the Supreme Court, it is improper for
federal district courts to exercise jurisdiction over a case that
is the functional equivalent of an appeal from a state court
judgment. See Rooker v. Fidelity Trust Co.,
263 U.S. 413, 415-16
(1923). As this court recently explained:
When a plaintiff seeks to litigate a claim in a federal
court, the existence of a state court
judgment in another case bars the federal
proceeding under Rooker-Feldman only when
entertaining the federal court claim would be
the equivalent of an appellate review of that
order. For that reason, Rooker-Feldman
applies only when in order to grant the
federal plaintiff the relief sought, the
federal court must determine that the state
court judgment was erroneously entered or
must take action that would render that
judgment ineffectual.
FOCUS, 75 F.3d at 840 (citations omitted). Those circumstances
are not present here.
Although Ernst’s Third Amended Complaint sought her
appointment as Susanne’s legal guardian, which was the relief
that she had been unable to obtain in the state courts, that
portion of the complaint was mooted when the state court returned
11
Susanne to Ernst’s custody. Thus, the district court was left to
decide only Ernst’s § 1983 claims for damages, which were
grounded primarily in her allegations that the defendants
violated her right to substantive due process when they
formulated and made recommendations to the state court regarding
Susanne’s dependency. The Rooker-Feldman doctrine did not
preclude the district court from deciding those claims because a
ruling that the defendants violated Ernst’s right to substantive
due process by making recommendations to the state court out of
malice or personal bias would not have required the court to find
that the state court judgments made on the basis of those
recommendations were erroneous.
Moreover, it is clear that deciding the substantive due
process claims did not involve federal court review of a state
court decision because Ernst’s substantive due process claims
were never decided by the state court. Although Ernst mentioned
her concerns about bias on the part of the CYS defendants during
the dependency proceedings, she did not articulate those concerns
in constitutional due process terms. Neither did--or could--the
state court base any decision regarding Susanne’s dependency on a
determination that Ernst’s claims of bias or improper motive were
invalid. Cf. Valenti v. Mitchell,
962 F.2d 288, 296 (3d Cir.
1992) (holding that a party cannot escape Rooker-Feldman by
raising a new constitutional theory in federal court unless the
party lacked a realistic opportunity to fully and fairly litigate
the constitutional claim in the state court proceeding);
12
Centifanti v. Nix,
865 F.2d 1422, 1433 (3d Cir. 1989). A
dependency adjudication involves a determination that a child is
without proper parental care or control, 42 Pa. C.S.A. § 6302; In
the Interest of J.M.,
652 A.2d 877, 880 (Pa. Super. 1995), and
subsequent decisions regarding custody and placement are made on
the basis of the best interests of the child. 42 Pa. C.S.A.
§ 6351; In the Interest of Laura Sweeney,
574 A.2d 690, 691 (Pa.
Super. 1990). Neither an adjudication of dependency nor a
determination of the appropriate disposition of a dependent child
is based on the intentions or states of mind of the party seeking
the dependency adjudication. Therefore, a finding that the CYS
defendants violated Ernst’s right to substantive due process
would not have involved the invalidation of any conclusion or
judgment reached by the state court.4 Accordingly, the Rooker-
Feldman doctrine did not preclude the court from exercising
jurisdiction over Ernst’s substantive due process claims against
the CYS defendants. We have jurisdiction over the appeal
therefrom pursuant to 28 U.S.C. § 1291.
4. For this reason, the CYS defendants’ contention that Ernst’s
§ 1983 claims are barred by the doctrine of collateral estoppel
also fails. Because the state court never made any decision
regarding whether the defendants, in formulating recommendations
to the state court regarding Susanne’s dependency status,
violated Ernst’s substantive due process rights, the district
court here was not precluded by the doctrine of collateral
estoppel from entertaining Ernst’s substantive due process
claims. See O’Leary v. Liberty Mutual Ins. Co.,
923 F.2d 1062,
1065-66 (3d Cir. 1991) (“Under Pennsylvania law, ... a prior
determination of a legal issue is conclusive in a subsequent
action between the parties on the same or a different claim when
(1) the issue was actually litigated; (2) the issue was
determined by a valid and final judgment; and (3) the
determination was essential to the judgment.”).
13
B. Cross-Appeal
Ernst argues that this court lacks jurisdiction to
entertain Borzillo’s cross-appeal because Borzillo did not file a
timely notice of appeal from the district court’s immediately
appealable interlocutory denial of her motion for summary
judgment on the grounds of absolute immunity.5 Instead, she
waited and appealed from the final judgment against her. We
reject Ernst’s argument because we hold that an interlocutory
appeal from a denial of summary judgment on immunity grounds,
although permitted, is not obligatory.
This court has not yet addressed the specific issue of
whether a party that fails to file an appeal within 30 days after
entry of an immediately appealable interlocutory order denying
summary judgment on immunity grounds forfeits the right to
challenge that denial on appeal from the final judgment.
However, we have adopted the general rule that “[i]f matters are
adjudged by an interlocutory decree that is subject to immediate
appeal, and no appeal is taken, they are not foreclosed, but are
subject to review on appeal from the final judgment,” 9 Moore’s
Federal Practice § 110.18, at 194 (1996);
id. at 195 n.2 (citing
cases); see also 15A Wright & Miller, Federal Practice &
5. An order denying summary judgment on immunity grounds is
immediately appealable because an immediate appeal is necessary
to adequately protect the government official’s interest in
avoiding the time and expense of litigation. See Mitchell v.
Forsyth,
472 U.S. 511. 525 (1985); Giuffre v. Bissell,
31 F.3d
1241, 1245 (3d Cir. 1994).
14
Procedure § 3911, at 359 & n.78 (citing cases), in another
context. Victor Talking Mach. Co. v. George,
105 F.2d 697, 699
(3d Cir. 1939) (holding that interlocutory appeal from
interlocutory injunction is permissive rather than mandatory, and
injunction thus may be challenged on appeal from either the
interlocutory order or the final judgment). The Seventh Circuit
has described the rationale for the general rule:
Although a party has a right to take an immediate
appeal, there is no obligation to do so....
A rule that required people to appeal from
potentially “final” decisions not embodied in
separate documents [within the meaning of
Fed. R. Civ. P. 58] would lead to a blizzard
of protective appeals as litigants tried to
ensure their rights to review; many times the
rule would lead to pointless forfeitures as
litigants overlooked the possibility that a
particular order might be characterized as a
“final decision.”
Exchange Nat’l Bank of Chicago v. Daniels,
763 F.2d 286, 290 (7th
Cir. 1985) (emphasis in original). Moreover, “[m]aking
interlocutory appeals ... mandatory would turn the policy against
piecemeal appeals on its head.” Hunter v. Department of Air
Force Agency,
846 F.2d 1314, 1316 (11th Cir. 1988) (quoting In re
Chicken Antitrust Litigation,
669 F.2d 228, 236 (5th Cir. 1982)).
We can see no meaningful distinction between
interlocutory orders denying summary judgment on immunity grounds
and other appealable interlocutory orders. Accordingly, we think
it appropriate to extend the general rule to interlocutory orders
denying summary judgment on immunity ground. See McIntosh v.
Wienberger,
810 F.2d 1411, 1431 n.7 (8th Cir. 1987) (applying
15
general rule to orders denying summary judgment on immunity
grounds because the interest in protecting public officials from
monetary liability for official acts survives even after a trial
has been held). Therefore, Borzillo did not forfeit her right to
appeal the district court’s denial of her motion for summary
judgment on immunity grounds by waiting to file a notice of
appeal until after entry of a final judgment against her. We
thus have jurisdiction to consider the immunity issue raised in
her cross-appeal.
16
III. Ernst’s Appeal
A. CYS Defendants’ Absolute Immunity
Ernst challenges the district court’s grant of partial
summary judgment to the CYS defendants based on absolute immunity
“insofar as they acted in their prosecutorial capacity of filing
petitions and making recommendations to the court.” Order of
Jan. 27, 1993. She contends that the CYS defendants cannot claim
entitlement to immunity from suit under § 1983 because child
welfare workers employed by the state did not exist, and thus
enjoyed no immunity from suit at common law, in 1871 when § 1983
was enacted. Although we recognize that state-employed social
workers enjoyed no common law immunity from suit in 1871, we
nonetheless hold that the CYS defendants are entitled to absolute
immunity for their actions in petitioning and in formulating and
making recommendations to the state court because those actions
are analogous to functions performed by state prosecutors, who
were immune from suit at common law.
Section 1983 provides that “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of
any State ... subjects ... any citizen of the United States ...
to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws shall be liable to the party
injured.” 42 U.S.C. § 1983 (emphasis added). Despite its broad
language, the Supreme Court has consistently held that this
provision did not abolish long-standing common law immunities
from civil suits. See Burns v. Reed,
500 U.S. 478, 484 (1991)
17
(citing Pierson v. Ray,
386 U.S. 547, 554 (1967)); Imbler v.
Pachtman,
424 U.S. 409, 418 (1976). Instead, courts must
determine whether a particular governmental official is entitled
to immunity according to the following analysis:
[The] initial inquiry is whether [the] official
claiming immunity under § 1983 can point to a
common-law counterpart to the privilege he
asserts. If “an official was accorded
immunity from tort actions at common law when
the Civil Rights Act was enacted in 1871, the
Court next considers whether
§ 1983's history or purposes nonetheless counsel
against recognizing the same immunity in §
1983 actions.”
Malley v. Briggs,
475 U.S. 335, 340 (1986) (quoting Tower v.
Glover,
467 U.S. 914, 920 (1984)). Courts “look to the common
law and other history for guidance because [their] role is ‘not
to make a freewheeling policy choice,’ but rather to discern
Congress’ likely intent in enacting § 1983.”
Burns, 500 U.S. at
493 (quoting
Malley, 475 U.S. at 342).
The fact that a particular public official did not
enjoy absolute immunity at common law is not, however,
determinative of the absolute immunity issue. Where the official
claiming immunity occupies a governmental position that did not
exist at common law, he may still be entitled to immunity if he
performs official functions that are analogous to functions
performed by those who were immune at common law. See Butz v.
Economou,
438 U.S. 478 (1978) (holding that officials who perform
quasi-judicial and quasi-prosecutorial functions in
administrative agency adjudications are entitled to the same
18
immunities afforded to judges and prosecutors at common law); see
also Forrester v. White,
484 U.S. 219, 224 (1988) (“Running
through our cases, with fair consistency, is a ‘functional’
approach to immunity questions other than those that have been
decided by express constitutional or statutory enactment. Under
that approach, we examine the nature of the functions with which
a particular official or class of officials has been lawfully
entrusted, and we seek to evaluate the effect that exposure to
particular forms of liability would likely have on the
appropriate exercise of those functions.”). It is therefore
necessary for us to review the functions performed by officials
to whom absolute immunity has been accorded in order to determine
if child welfare workers perform analogous functions.
Under its historical and functional approach, the
Supreme Court has held that certain officials “functioning as
integral parts of the judicial process” are absolutely immune
from civil suits under § 1983. McArdle v. Tronetti,
961 F.2d
1083, 1084 (3d Cir. 1992). For example, the Court has declared
that judges, Pierson v. Ray,
386 U.S. 547 (1967), prosecutors,
Imbler v. Pachtman,
424 U.S. 409 (1976), and witnesses, Briscoe
v. LaHue,
460 U.S. 325 (1983), are entitled to absolute immunity
when they perform judicial or quasi-judicial acts that are
integral parts of the judicial process.
In Imbler v. Pachtman, the Court held that prosecutors
were absolutely immune at common law from civil liability for
malicious prosecution and that public policy considerations
19
countenanced a similar absolute immunity from suits under §
1983.
424 U.S. at 424. The relevant public policy considerations were
numerous. First, a prosecutor’s exercise of his independent
judgment would likely be compromised if he were threatened with
suits for damages for his actions in initiating and prosecuting
criminal cases in court.
Id. at 424-25. Such suits “could be
expected with some frequency, for a defendant often will
transform his resentment at being prosecuted into the ascription
of improper and malicious actions to the State’s advocate.”
Id.
at 425. Second, the prosecutor’s energy would be diverted from
his official duties if he were forced to defend himself against
§ 1983 actions.
Id. Third, defending against § 1983 actions
likely would be particularly difficult for a prosecutor:
[T]he honest prosecutor would face greater difficulty
in meeting the standards of qualified
immunity than other executive or
administrative officials. Frequently acting
under serious constraints of time and even
information, a prosecutor inevitably makes
many decisions that could engender colorable
claims of constitutional deprivation.
Defending these decisions, often years after
they were made, could impose unique and
intolerable burdens upon a prosecutor
responsible annually for hundreds of
indictments and trials.
Id. at 425-26. Fourth, failure to afford absolute immunity to
prosecutors might undermine the functioning of the criminal
justice system because it might lead prosecutors concerned about
personal liability not to tender evidence that, while relevant,
might conceivably turn out to be fabricated by the witness.
Id.
at 426. Fifth, failure to afford absolute immunity might weaken
20
the fairness of the criminal justice system by clouding
postconviction review with “the subconscious knowledge that a
post-trial decision in favor of the accused might result in the
prosecutor’s being called upon to respond in damages for his
error or mistaken judgment.”
Id. at 427. Finally, the court
noted that absolute immunity for prosecutors would not leave the
public without any means to punish or deter unconstitutional
conduct because the availability of both judicial review and
professional disciplinary procedures would protect the public and
punish the errant prosecutor.
Id. at 429. Thus, the Court
concluded that “in initiating a prosecution and in presenting the
State’s case, the prosecutor is immune from a civil suit for
damages under § 1983.”
Id. at 431.
In Burns v. Reed,
500 U.S. 478 (1991), and Buckley v.
Fitzsimmons,
509 U.S. 259 (1993), the Court clarified the scope
of a prosecutor’s absolute immunity from suit under § 1983. In
Burns, the Court held that a prosecutor was absolutely immune
from liability for his presentation of evidence in a probable
cause hearing but was not absolutely immune for the provision of
legal advice to police officers investigating a case.
Emphasizing its “functional approach” to immunity under § 1983,
the Court reiterated that absolute immunity extends only to
prosecutorial activities that are “intimately associated with the
judicial phase of the criminal process.”
Burns, 500 U.S. at 493
(quoting
Imbler, 424 U.S. at 430). Such activities include both
the initiation and prosecution of the State’s case and certain
21
“actions preliminary to the initiation of a prosecution” but
nonetheless integral to the judicial prosecution of the case.
Id. at 491 (quoting
Imbler, 424 U.S. at 431 n.33).
In Buckley v. Fitzsimmons, the Court again declared
that “the Imbler approach focuses on the conduct for which
immunity is
claimed,” 509 U.S. at 271-72 (emphasis added), and
the “functional tie” between that conduct and the judicial
process in a criminal case.
Id. at 277-78. It distinguished
between a prosecutor’s functioning as an “advocate” in judicial
proceedings on behalf of the State, which is entitled to
immunity, and as an investigator searching for clues that might
lead to an arrest, which is not entitled to absolute immunity.
Applying the principles set forth in Butz, Imbler, and
their progeny to the instant case, we hold that the CYS
defendants are entitled to absolute immunity for their actions
on behalf of the state in preparing for, initiating, and
prosecuting dependency proceedings. Their immunity is broad
enough to include the formulation and presentation of
recommendations to the court in the course of such proceedings.
We reach this conclusion because (1) the functions performed by
the CYS defendants in dependency proceedings are closely
analogous to the functions performed by prosecutors in criminal
proceedings; (2) the public policy considerations that
countenance immunity for prosecutors are applicable to child
welfare workers performing these functions; and (3) dependency
proceedings incorporate important safeguards that protect
22
citizens from unconstitutional actions by child welfare workers.
With this holding, we join the courts of appeals of the Fourth,
Sixth, Seventh, Eighth, and Ninth Circuits. See, e.g.,
Millspaugh v. County Dep’t of Pub. Welfare of Wabash County,
937
F.2d 1172, 1176 (7th Cir. 1991); Vosburg v. Department of Soc.
Servs.,
884 F.2d 133, 135 (4th Cir. 1989); Salyer v. Patrick,
874
F.2d 374, 378 (6th Cir. 1989); Meyers v. Contra Costa County
Dep’t of Soc. Servs.,
812 F.2d 1154, 1156 (9th Cir. 1987).6
The functions performed by child welfare workers like
the CYS defendants in dependency proceedings are closely
6. Justices Thomas and Scalia recently criticized the appellate
court cases that have held that social workers are entitled to
absolute immunity for quasi-prosecutorial acts on the ground that
[a]n official seeking ... immunity ... must at the
outset show that a “counterpart to the
privilege he asserts” was recognized at
common law in 1871.... The courts that have
accorded absolute immunity to social workers
appear to have overlooked the necessary
historical inquiry; none has seriously
considered whether social workers enjoyed
absolute immunity for their official duties
in 1871. If they did not, absolute immunity
is unavailable to social workers under
§ 1983. This all assumes, of course, that “social
workers” (at least as we now understand the
term) even existed in 1871. If that
assumption is false, the argument for
granting absolute immunity becomes (at least)
more difficult to maintain.
Hoffman v. Harris,
114 S. Ct. 1631 (1994) (Thomas, J., dissenting
from denial of certiorari) (citations omitted). However, there
has been no indication that the other justices on the Court
perceive the appropriate historical inquiry in the same way as do
Justices Thomas and Scalia. Indeed, it seems to us inconsistent
with the Court’s holding in Butz to do so.
23
analogous to those performed by prosecutors. As the Ninth
Circuit has explained,
[a]lthough child services workers do not initiate
criminal proceedings, their responsibility
for bringing dependency proceedings, and
their responsibility to exercise independent
judgment in determining when to bring such
proceedings, is not very different from the
responsibility of a criminal prosecutor. The
social worker must make a quick decision
based on perhaps incomplete information as to
whether to commence investigations and
initiate proceedings against parents who may
have abused their children.
Meyers, 812 F.2d at 1157.
In addition, child welfare workers involved in the
prosecution of dependency proceedings clearly serve “as advocate
for the State,”
Imbler, 424 U.S. at 430-31 n.33, in a capacity
that is “intimately associated with the judicial phase of the
[child protection] process.”
Id. at 430. A CYS court liaison
officer and a case work supervisor testified that CYS
caseworkers, after consultation with their supervisors and other
professionals such as psychologists and school officials,
determine what recommendations are made to the court in
dependency proceedings. Even when they work with an attorney who
represents CYS in the dependency proceeding, the attorney plays
no role in formulating the recommendations made to the court; she
merely "expresses [CYS’s] recommendations on [its] behalf." App.
at 518a. Because CYS caseworkers are directly responsible for
the recommendations made to the court in dependency proceedings,
their actions in determining those recommendations and
24
communicating them to the court are "intimately associated" with
the judicial process in much the same way as are a prosecutor’s
actions in representing the state in criminal prosecutions.
Moreover, we conclude that the public policy
considerations supporting absolute immunity for prosecutors are
equally applicable to child welfare workers acting in a quasi-
prosecutorial capacity in dependency proceedings. Like a
prosecutor, a child welfare worker must exercise independent
judgment in deciding whether or not to bring a child dependency
proceeding, and such judgment would likely be compromised if the
worker faced the threat of personal liability for every mistake
in judgment. Certainly, we want our child welfare workers to
exercise care in deciding to interfere in parent-child
relationships. But we do not want them to be so overly cautious,
out of fear of personal liability, that they fail to intervene in
situations in which children are in danger. See
Millspaugh, 937
F.2d at 1176-77; cf. DeShaney v. Winnebago County Dep’t of Soc.
Servs.,
489 U.S. 189, 191-93 (1989).
In the absence of absolute immunity, we would expect
suits in retaliation for the initiation of dependency proceedings
to occur with even greater frequency than suits against
prosecutors. Parents involved in seemingly unjustified
dependency proceedings are likely to be even more resentful of
state interference in the usually sacrosanct parent-child
relationship than are defendants of criminal prosecution. See
Vosburg, 884 F.2d at 137. In turn, the likely frequency of such
25
suits would result in a significant diversion of the energies of
child welfare workers away from their official duties to the
defense of § 1983 litigation. Further, defending against § 1983
actions would likely be as difficult for child welfare workers as
it would be for prosecutors because child welfare workers, like
prosecutors, must make quick decisions on the basis of limited
information. “Defending these decisions, often years after they
are made, could impose unique and intolerable burdens on [child
welfare workers] responsible annually for hundreds of [dependency
and child abuse cases].”
Imbler, 424 U.S. at 425-26.
Finally, as with prosecutors, there are alternative
mechanisms other than the threat of § 1983 liability that protect
the public against unconstitutional conduct by child welfare
workers. First, the judicial process itself provides significant
protection. See
Millspaugh, 937 F.2d at 1177. Child welfare
workers must seek an adjudication of dependency from a neutral
judge whose decisions are guided by the “best interests of the
child” and subject to appellate review. Second, although child
welfare workers are not subject to the comprehensive system of
professional responsibility applicable to prosecutors, they are
under the supervision of the agency that employs them. The
agency has an incentive to ensure that its employees do not
violate constitutional rights because it is not immune from suit
for abuses committed by employees with policy-making authority or
acting pursuant to agency policy or custom.
26
Reviewing Ernst’s Third Amended Complaint, it is clear
that all of the claims against the CYS defendants concern actions
taken by the defendants in connection with the formulation and
presentation of recommendations to the state court regarding
Susanne’s dependency status and disposition. Because all of
these actions are analogous to a prosecutor’s preparation for and
initiation and presentation of a criminal prosecution, we hold
that the CYS defendants are entitled to absolute immunity for the
conduct that Ernst challenges here.7
We cannot agree with the district court’s conclusion
that the CYS defendants’ actions in preparing and formulating
recommendations to the state court were not within the scope of
their absolute immunity. The Supreme Court has explicitly
rejected the idea that absolute prosecutorial immunity “extends
only to the act of initiation itself and to conduct occurring in
7. We emphasize that our holding concerns only actions taken by
child welfare workers in the context of dependency proceedings.
Like our sister courts in the Fifth, Sixth, Seventh, and Tenth
Circuits, we would be unwilling to accord absolute immunity to
“investigative or administrative” actions taken by child welfare
workers outside the context of a judicial proceeding. See Snell
v. Tunnell,
920 F.2d 673 (10th Cir. 1990) (holding that pre-
adjudicatory investigative activities by child welfare workers
are entitled only to qualified immunity); Achterhof v. Selvaggio,
886 F.2d 826 (6th Cir. 1989) (holding that opening and
investigating child abuse case and placing parent’s name on
central registry of abusers are investigative and administrative
activities entitled only to qualified immunity); Austin v. Borel,
830 F.2d 1356 (5th Cir. 1987) (holding that filing of complaint
that allowed child services to obtain custody but did not
initiate adjudicative proceeding was analogous to police
officer’s complaint filed to obtain arrest warrant and was
therefore entitled only to qualified immunity) (citing Malley v.
Briggs,
475 U.S. 335 (1986)); Millspaugh v. County Dep’t of Pub.
Welfare of Wabash County,
937 F.2d 1172 (7th Cir. 1991) (same).
27
the courtroom.”
Buckley, 509 U.S. at 272. Moreover, the Court
has expressly embraced the idea that immunity must be afforded to
the evaluation of available data to determine whether and in what
manner to seek judicial action:
We expressly stated [in Imbler] that "the duties of the
prosecutor in his role as advocate for the
State involve actions preliminary to the
initiation of a prosecution and actions apart
from the courtroom," and are nonetheless
entitled to absolute immunity.... We have
not retreated ... from the principle that
acts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or
for trial, and which occur in the course of
his role as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include the
professional evaluation of the evidence
assembled by the police and appropriate
preparation for its presentation at trial or
before a grand jury after a decision to seek
an indictment has been made.
Id. at 272-73.
Ernst here challenges the CYS defendants’ formulation
of professional judgments that served as the basis for a series
of recommendations they made to the Pennsylvania Court of Common
Pleas. To grant them absolute immunity for the recommendations
they made to the court but deny them such immunity for the
observations and judgments that were the necessary predicate for
those recommendations would eviscerate the immunity they did
receive and undermine the purposes sought to be advanced by the
grant of absolute immunity. We therefore conclude that, like a
prosecutor’s evaluation of evidence in preparation for indictment
or trial, the CYS defendants’ gathering and evaluation of
28
information and professional opinions regarding the relationship
between Ernst and Susanne in preparation for the dependency
proceedings must be protected. Accordingly, we will affirm the
grant of judgment for the CYS defendants’ for their actions in
formulating recommendations concerning Susanne’s dependency
proceedings on the ground of absolute immunity rather than the
substantive due process analysis relied on by the district court.
B. Liability of CYS
The district court granted judgment in favor of CYS
because it found that Ernst had failed to prove at trial that CYS
had a policy or custom of allowing its employees to violate
substantive due process or of inadequate training, supervision,
or discipline of its employees in that regard. See Monell v.
Dep’t of Soc. Servs.,
436 U.S. 658, 690-91 (1978) (holding that
municipality cannot be held liable for constitutional violations
committed by employees unless such violations occurred pursuant
to a policy or custom promulgated by the municipality). Ernst
does not argue on appeal that this finding was clearly erroneous.
Instead, she contends that the district court erred when it
failed to consider evidence that CYS was liable under § 1983 on
the theory that substantive due process violations were committed
by an official with policy-making authority. We find that the
district court did not err in refusing to consider the proffered
“evidence.”
29
During the bench trial, Ernst attempted to prove that
CYS had a policy or custom of violating the substantive due
process rights of the families with which it was involved by
calling several witnesses to testify about their dissatisfaction
with CYS’s handling of their cases. After the record had been
closed and the parties had offered closing argument, Ernst’s
counsel, perhaps realizing that the testimony then in evidence
would not suffice to prove a “policy or custom” of
unconstitutional conduct by CYS, urged the court to also consider
the possibility that CYS was liable under § 1983 for substantive
due process violations committed by a CYS official with policy-
making authority. See Pembaur v. City of Cincinnati,
475 U.S.
469, 480-81 (1986) (holding that municipality may be liable under
§ 1983 for constitutional deprivation that occurs because of a
single action taken by an official with final decision-making
authority to take such action). As proof of such
unconstitutional conduct by a CYS policy-maker, Ernst’s counsel
directed the court to an affidavit by Wayne Stevenson, the
director of CYS, that had been submitted with CYS’s motion for
summary judgment. According to the affidavit, Stevenson was
familiar with and had approved of the handling of the Ernst case.
However, Stevenson had not been called to testify during the
trial nor had the affidavit been offered into evidence.
Accordingly, the district court ruled that it would not consider
the contents of the affidavit in determining whether CYS was
liable under § 1983.
30
Ernst argues on appeal that the district court erred in
failing to take judicial notice of the affidavit as a judicial
record in the case. See Fed. R. Evid. 201 (court shall, at any
stage of a proceeding, take judicial notice, upon request by a
party, of a fact not subject to reasonable dispute because it is
generally known or is “capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned”); Randy’s Studebaker Sales, Inc. v.
Nissan Motor Corp.,
533 F.2d 510, 521 (10th Cir. 1976) (“the
court may take judicial notice of its own records, especially in
the same case”); McCormick on Evidence § 330, at 396 (4th ed.
1992). Ernst acknowledges that the doctrine of judicial notice
only permits the court to take notice of the fact of the
submission of the affidavit. Nonetheless, she argues that the
contents of the affidavit are themselves admissible for their
truth under Fed. R. Evid. 801(d)(2), which provides that a
statement made by and offered against a party is not hearsay.
We find no reversible error. The fact that the
statements contained in the Stevenson affidavit may not be
hearsay says nothing about whether the court erred in refusing to
consider the substance of the statements when the contents of the
affidavit were never offered into evidence during the trial.
While the district court undoubtedly had the authority to reopen
the record, it is apparent that it did not abuse its discretion
in declining to do so. We hold, therefore, that the district
court did not err in refusing to consider the Stevenson affidavit
31
as evidence of CYS’s liability under § 1983, and we will affirm
the grant of judgment for CYS.
C. The First Amendment Challenge to
Juvenile Court Closure Provision
Pennsylvania’s Juvenile Act provides in relevant part:
Except in hearings to declare a person in contempt of
court and in [delinquency] hearings as
specified in subsection (e), the general
public shall be excluded from hearings under
this chapter. Only the parties, their
counsel, witnesses, the victim and counsel
for the victim, other persons accompanying a
party or a victim for his or her assistance,
and any other person as the court finds have
[sic] a proper interest in the proceedings or
in the work of the court shall be admitted by
the court....
42 Pa. C.S.A. § 6336(d). The Official Comment to the section
states that “[t]he section as drawn permits the court in its
discretion to admit news reporters. This is frequently done with
the understanding that the identity of the cases observed will
not be published, a procedure generally satisfactory to the news
media.”
Ernst argued before the district court that this
closure provision violated the First Amendment right of access to
judicial proceedings enjoyed by the public and press. The
district court declined to address Ernst’s First Amendment claim
because it found that Ernst lacked standing to raise the
constitutional rights of the public and press. On appeal, Ernst
argues that the district court erred in refusing to permit her to
32
raise the right of access of the public because she is a member
of the public entitled to raise the right on her own behalf.
Although we agree that Ernst shares the public’s right
of access to the courts, we nonetheless hold that the district
court was correct in concluding that Ernst lacked standing to
bring her First Amendment claim. We reach this conclusion
because even though Ernst, along with the rest of the public,
possesses a general right of access to the courts, she has not
alleged or shown that she suffered the injury-in-fact necessary
to create a justiciable “case or controversy” under Article III
of the Constitution.
The doctrine of standing is "an essential and
unchanging part of the case-or-controversy requirement of Article
III" of the Constitution. Lujan v. Defenders of Wildlife,
504
U.S. 555, 560 (1992). To satisfy the standing requirement, a
plaintiff must demonstrate (1) an "injury in fact" which is both
"concrete and particularized" and "actual or imminent"; (2) a
causal connection between the injury and the challenged conduct;
and (3) a likelihood that the injury will be redressed by a
favorable decision.
Id. at 560-61. The “injury in fact”
component requires that the plaintiff “allege a distinct and
palpable injury to himself.” Warth v. Seldin,
422 U.S. 490, 501
(1975). The injury must “affect the plaintiff in a personal and
individual way.”
Lujan, 504 U.S. at 560 n.1.
A generalized injury shared by the plaintiff with the
public at large is insufficient to create a concrete “case or
33
controversy” over which a federal court may exercise its
jurisdiction. Schlesinger v. Reservists Committee to Stop the
War,
418 U.S. 208, 219-20 (1974). As the Court explained in
Schlesinger,
[S]tanding to sue may not be predicated upon an
interest of the kind ... which is held in
common by all members of the public, because
of the necessarily abstract nature of the
injury all citizens share. Concrete injury,
whether actual or threatened, is that
indispensable element of a dispute which
serves in part to cast it in a form
traditionally capable of judicial resolution.
It adds the essential dimension of
specificity to the dispute by requiring that
the complaining party have suffered a
particular injury caused by the action
challenged as unlawful. This personal stake
is what the Court has consistently held
enables a complainant authoritatively to
present to a court a complete perspective
upon the adverse consequences flowing from
the specific set of facts undergirding the
grievance.... Only concrete injury presents
the factual context within which a court,
aided by parties who argue within the
context, is capable of making decisions....
[T]he requirement of concrete injury further
serves the function of insuring that
[constitutional] adjudication does not take
place unnecessarily.
Id. at 220-21.
Here, Ernst failed to allege the kind of concrete and
particularized injury necessary to establish standing to assert a
First Amendment challenge to Pennsylvania’s juvenile court
closure provision. She has not alleged that she has ever been
excluded under the closure provision from a proceeding to which
she sought access. The only First Amendment allegation in her
Third Amended Complaint asserts that “Sylvia Ernst’s first
34
amendment rights are being violated by not opening up the record
of this case; courts are closed to press.” Compl. ¶ 64. During
argument before the district court on the First Amendment issue,
Ernst’s counsel agreed with the court that Ernst was “not
complaining about her exclusion from a particular hearing but ...
about the unconstitutionality of the statute because all the
proceedings are closed to the press and public.” App. at 872a
(emphasis added).
Because Ernst has alleged only a generalized harm to
the public at large from the closure provision, we hold that she
lacks standing to assert a First Amendment challenge to the
provision.
35
IV. Borzillo’s Cross-Appeal
Ernst’s only success at trial was against CYS attorney
Borzillo, against whom she was awarded nominal damages and
attorneys’ fees. The district court found that Borzillo violated
Ernst’s right to substantive due process when she filed a
petition for rehearing en banc with the President Judge of the
Chester County Court of Common Pleas and obtained a stay of a
court order granting Ernst an unsupervised visit with Susanne.
Borzillo cross-appeals the district court’s grant of judgment
against her, arguing, inter alia, that she is entitled to
absolute immunity for her activity in connection with the
petition.
In its pre-trial grant of partial summary judgment for
the defendants, the district court held that Borzillo was
entitled to absolute quasi-prosecutorial immunity for her actions
in representing CYS in connection with Susanne’s dependency
proceedings.8 However, the court held that Borzillo was not
8. Although Borzillo does not exercise independent judgment in
determining what specific recommendations are made to the court
regarding the appropriate disposition of a dependent child, see
supra, p. 22, she exercises independent judgment in offering
legal advice to CYS on such issues as, for example, whether there
is sufficient evidence to pursue a dependency adjudication.
Moreover, in representing CYS before the court, Borzillo clearly
acts as an advocate on behalf of the state in a role that is
"intimately associated" with the judicial process. Thus, her
duties, like those of the CYS defendants, are closely analogous
to those of a prosecutor advocating on behalf of the state in a
criminal prosecution. Accordingly, for reasons similar to those
set forth in Part III-A, we agree with the district court that
Borzillo is entitled to absolute immunity for her representation
of CYS.
36
immune for actions she took on CYS’s behalf after Judge Melody of
the Chester County Court of Common Pleas removed her from
Susanne’s case.
Borzillo’s removal from Susanne’s case arose from an
exchange she had with the court during a November 20, 1991
hearing before Judge Melody, who was then newly assigned to the
case. During the hearing, but outside the presence of CYS or its
attorney, Judge Melody spoke with Susanne about her desire to
have an unmonitored weekend home visit with her grandmother.
Upon learning that the court was considering granting a home
visit, Borzillo returned to the courtroom to "object
strenuously." In the apparent belief that Judge Melody was on
the verge of granting the home visit, Borzillo commented, "Your
Honor, I find it interesting that you are making a decision
without reading the file of this case." App. at 2075a-76a. The
following exchange ensued:
THE COURT: I didn’t make any decision. I'm
disturbed with you, Ms. Borzillo. You are
saying that I'm making decisions and I
haven't made any decision. I am talking to
people and I resent the fact that you are
saying that I am making decisions. I haven't
made any decision yet, --
MS. BORZILLO: I am sorry, Your Honor.
* * *
THE COURT: Ms. Borzillo, I observed the way
you acted. You did not act as a professional
attorney. You came in with an obvious bent
and chip on your shoulder with your face . .
. red as a beet, red as a tomato, mad,
distraught, upset. You did not act as a
responsible attorney, in my humble opinion.
I do not think that you can possibly be
objective with regard to this case and the
37
attorney involved for CYS has to be objective
and because you cannot be objective and
because of what you demonstrated to me, you
cannot help us with regard to this case, and
by that I mean, you cannot help the Court and
I don't believe that you can help in the best
interest of this child. So in the best
interest of this child, you are going to be
removed from this case and someone else is
going to have to become involved in the case.
In the meantime, all matters are continued
until that is done.
* * *
MR. WILSON [Susanne’s court-appointed
attorney]: Your Honor, may I ask that she
remain in the case.
THE COURT: We will not have a meeting at this
time until CYS is represented. So, we will
have CYS represented by someone and then I
would be happy to have a meeting with you and
other counsel.
MR. WILSON: I would ask that you reconsider
Ms. Borzillo’s removal from the case.
THE COURT: I am not going to reconsider it.
It was so obvious in the way that she stormed
into this room, that she cannot be objective.
I have been a lawyer since 1960, I have been
a Judge since May of 1981, I know people, I
know lawyers, and it’s obvious to me that the
way that she stormed in here with her face as
red as a beet or red as a tomato, that she
cannot be objective with regard to this case
and she cannot, in my humble opinion, to aid
me as a Judge and in my humble opinion, she
cannot be objective, which would be in the
best interest of the child and that’s why in
my opinion she should no longer remain in the
case. Because of the way that she acted,
it’s too obvious to me that new blood, by way
of a new attorney for CYS, has to be infused
in this case.
MR WILSON: Your Honor will not reconsider?
THE COURT: I will not reconsider. It’s too
obvious to me that she is too personally
involved in this case to the extent -- well,
you saw the way she acted and I don’t have to
38
say anymore, so that will take care of things
for today.
Transcript of November 21, 1991 Hearing, at 34-37, App. at 2076a-
78a & Supp. App. at 1.
Judge Melody did not immediately issue an order
implementing his declared intention to remove Borzillo and to
require CYS to retain new counsel. Moreover, contrary to his
statement that all matters would be continued until a new
attorney was appointed by CYS, Judge Melody issued an order on
December 13, 1991 granting Ernst a one hour unsupervised visit
with Susanne. Upon receiving a copy of the order from Ernst's
attorney on December 18, 1991, CYS asked Borzillo to look into
the matter and try to prevent the unsupervised visit from taking
place.
Borzillo contacted Judge Melody's chambers at 11:05
A.M. to challenge the issuance of the order and was informed that
the judge would not be available to entertain a motion for
reconsideration until December 23rd. Judge Melody did, however,
send Borzillo a letter, dated December 18, 1991, threatening
contempt proceedings if CYS did not comply with the visitation
order, and further stating, “As of this moment, you are not
counsel for Children & Youth Services in this case. However, you
may be reinstated in the future for Children & Youth Services in
this case.” In his letter, Judge Melody acknowledged that he had
"handed down the order sua sponte without input from Children &
Youth Services or anyone else because [he] believed it was in the
39
best interest of the child to do so." The letter indicated that
a copy had been dispatched to President Judge Lawrence Wood of
the Chester County Court of Common Pleas.
Continuing her efforts to prevent the unmonitored visit
from taking place, Borzillo, on December 18, 1991, filed with
President Judge Wood a motion for argument en banc and a motion
to stay Judge Melody's visitation order. Judge Wood granted a
stay at 9:21 A.M. the next day, and Ernst’s visit with Susanne
that afternoon was supervised. Shortly thereafter, Judge Melody
withdrew from the case, it was reassigned, and the new judge
allowed Borzillo to continue representing CYS.
The district court held that Borzillo was not entitled
to immunity for actions taken during the time that she was
“removed” from the case because those actions were “in breach of
a court order” and as such were “not within the prosecutorial
function.” Ernst v. Children & Youth Servs. of Chester County,
No. CIV. A. 91-3735,
1993 WL 343375, at *24 (E.D. Pa. Sept. 3,
1993) (citing Chrissy F. by Medley v. Mississippi Dep’t of Pub.
Welfare,
925 F.2d 844 (5th Cir. 1991)). On the merits, the court
found that Borzillo’s efforts to prevent Ernst from enjoying a
single unsupervised visit with Susanne were “motivated by
animosity and anger at Ernst’s small victory” and “exceeded the
bounds of zealous advocacy.”
Id. at *25. Because we conclude
that Borzillo was not acting completely outside her authority as
CYS’s attorney, we reject the district court’s conclusion and
40
hold that Borzillo is entitled to absolute immunity for her
actions taken on CYS’s behalf on December 18-19, 1991.
As we explained in Part III-A, a prosecutor or other
official performing a quasi-prosecutorial function for the state
is entitled to absolute immunity for official actions taken on
behalf of the State that are integrally related to the judicial
process. If absolute immunity is to serve its purpose, the line
between official conduct, as to which there is immunity, and
extra-official conduct, as to which there is not, must be drawn
without reference to the official’s subjective state of mind. It
must also be drawn in a manner that leaves officials room for
good faith mistakes about the extent of their authority. Thus,
if the circumstances in a particular case were such that a
reasonable prosecutor in the defendant’s position could have had
a good faith belief that he was authorized by his office to act
as he did, immunity will be recognized. In such a case, an
allegation that the official acted in bad faith, knowing his
conduct to be unauthorized, will not strip the official of
absolute immunity. Similarly, absolute immunity will be
available, in such a case, even if the authority in fact was
lacking under the law. Stated conversely, immunity will be
denied only for those acts which a reasonable prosecutor would
recognize as being "clearly outside his jurisdiction" to
represent the state before the court. Bauers v. Heisel,
361 F.2d
581, 591 (3d Cir. 1966).
41
Bauers illustrates the governing principles. It was a
civil rights action in which the defendant prosecutor had
instituted and prosecuted a criminal proceeding against the
plaintiff in a New Jersey court of general jurisdiction. A
higher New Jersey court subsequently held that because the
defendant had been under 18 years of age at the time of the
alleged offense, jurisdiction was lodged exclusively in the
Juvenile Court. Accordingly, the indictment, sentence and
ensuing incarceration were found to be illegal. The plaintiff
alleged that the defendant knew that plaintiff had not reached
the age of 18 at the time of the alleged crimes and, accordingly,
that the prosecution would deny plaintiff due process of law. We
accepted both this allegation and the legal proposition that the
prosecution had been beyond the defendant’s authority. We
nevertheless held that the defendant was entitled to absolute
immunity based on the following rationale:
We have already indicated that the primary
responsibility of a prosecutor is to
vindicate the wrongs which have been
committed against society. This is precisely
what appellee was doing when the denial of
appellant’s liberty occurred. The mere fact
that the New Jersey Legislature had excised
from his responsibility the prosecution of
individuals who were under the age of
eighteen when they committed acts which would
otherwise be punishable offenses does not
indicate that he was acting clearly outside
his jurisdiction.
Bauers, 361 F.2d at 591; see also Snell v. Tunnell,
920 F.2d 673,
694 (10th Cir. 1990) ("[w]hile a prosecutor might lose absolute
42
immunity when he acts with a complete and clear absence of
authority, such a condition does not occur when a prosecutor has
an arguable basis of authority").
With this background, we turn to the facts of this
case. Borzillo was an attorney in private practice who was
engaged by CYS from time to time to represent it in dependency
proceedings. By December 18, 1991, her representation of CYS in
Susanne’s dependency matters was entering its 43rd month. During
that representation, there had been countless appearances before
the court and, by December 18, 1991, the relevant factual
background of the matter could fairly be characterized as
extensive.
As we have noted, the act which the district court
found to be beyond the scope of Borzillo’s absolute immunity was
the filing in court on December 18th of a petition seeking review
of an order entered without notice to her client. The petition
was filed at her client’s request and did nothing more than
present to the court the views and position of her client with
respect to that order. Thus, like the challenged conduct of the
prosecutor in Bauer, the conduct Ernst challenged here was
precisely the kind of activity in which one occupying Borzillo’s
office would be expected to engage.
It is true that Ernst alleged, and the court found,
that Borzillo and her client filed this petition because of
hostility to Ernst rather than for the purpose of serving the
best interest of Susanne. As we have explained, however, the
43
subjective motivation behind the challenged action cannot deprive
Borzillo of immunity if a reasonable person in her position could
have believed she was acting within the scope of her authority.
The district court also concluded that the filing of
the petition was "in breach of a court order." Ernst,
1993 WL
343375, at *24. While we agree that the existence of a court
order directing that the challenged act not be done is highly
relevant to, and will ordinarily be determinative of, whether a
prosecuting attorney has acted in a "clear absence of authority,"
there were extenuating circumstances here.
At the November 20, 1991, hearing before the court,
Judge Melody, after an emotionally charged exchange, concluded
that Borzillo could not be "objective" about the case. The judge
then announced that Borzillo would be removed and that someone
else would have to become involved in the case. He assured the
parties that "in the meantime, all matters [would be] continued
until that was done." No order followed directing CYS to secure
new counsel. Given the nature, length and frequency of the
proceedings in this matter, a change of counsel was not something
that CYS could easily accomplish. In light of this fact and the
emotional character of the November 20th hearing, we believe CYS
cannot be faulted for waiting to see if an order requiring a
change of counsel would actually ensue.
From CYS’s perspective, matters remained in a holding
pattern until the morning of December 18th when it received from
Ernst’s counsel a copy of an order directing that an unsupervised
44
visit take place the next day. This order came as a complete
surprise since CYS had received no notice that an application for
this relief had been filed. It believed that such a visit was
not in Susanne’s interest and asked Borzillo to see what could be
done. Borzillo first tried to convey her client’s view to Judge
Melody. When advised that Judge Melody was unavailable, Borzillo
filed the challenged petition for rehearing en banc and a stay.
The "order" removing Borzillo to which the district
court referred in its ruling may have been in the letter
apparently written by Judge Melody during the afternoon of
December 18th in which he informed Borzillo that she was removed
from the case "as of this moment." The district court made no
express finding, however, that this letter was received by
Borzillo prior to the filing of the challenged petition, and we
have found no record evidence that would support such a finding.
Nonetheless, even if we were to assume that Judge Melody’s
letter was hand-delivered to Borzillo prior to the filing of the
petition, we could not say that the petition she filed was
clearly in excess of her authority.
Borzillo’s client had had no previous opportunity to
express its views on Ernst’s application. Nor had it previously
had the opportunity to challenge Judge Melody’s December 18th
letter order removing its counsel from the case, presumably for
lack of objectivity. There was clearly no time to secure
substitute counsel; the order that CYS wished to challenge would
45
become moot before new counsel could review the matter and file a
petition.
Judge Melody’s December 18th letter order "removing"
Borzillo was not entered for the benefit or protection of an
opposing party. Nor was it entered as a sanction for conduct the
judge had found to be disruptive of the judicial process.
Rather, it was entered presumably because the judge believed
Borzillo would not, at least for the moment, be able to assist
him in determining what was in Susanne’s best interest.
In this context, we believe a reasonable attorney in
Borzillo’s position could have concluded that she owed a duty to
her client to seek judicial review at its behest and that
petitioning for that review before the court en banc was not what
Judge Melody intended to preclude by writing his December 18th
letter. It necessarily follows that Borzillo did not act in a
clear absence of authority.9
9. In the course of reaching its contrary conclusion, the
district court suggested that Borzillo improperly failed to
disclose to Judge Wood the fact that Judge Melody had removed her
from the case. The basis for this suggestion is not clear to us,
but, in any event, it does not alter our conclusion that Borzillo
did not act in clear absence of authority. If Borzillo did not
receive Judge Melody’s December 18th letter before she filed her
petition on that day, we believe the "removal" situation was
sufficiently ambiguous that a disclosure on the subject was not
required. Even if Borzillo received Judge Melody’s letter before
her filing with Judge Wood, we believe, as we have explained,
that a reasonable attorney in Borzillo’s position reasonably
could have believed that seeking review before another judge was
not something Judge Melody intended to preclude. Moreover, if
Borzillo received Judge Melody’s letter before filing, she would
have known from the face of the letter that a copy had been
dispatched to Judge Wood.
46
Because we hold that Borzillo is entitled to absolute
immunity for all of her quasi-prosecutorial activities while
representing CYS in connection with Susanne’s dependency
proceedings, we will reverse the district court’s grant of
judgment against her and remand for entry of judgment in her
favor.
V.
The district court found it "disappointing that [the
CYS] professionals were unable to submerge their personal views
in dealing with a difficult woman or to give her sufficient
credit for fighting placements out of genuine concern for
[Susanne’s] welfare." Ernst,
1993 WL 343375, at *23. There is
ample evidence in the record to support this view, as well as the
view that their inability to do so had unfortunate consequences
for Susanne and her grandmother. Nevertheless, we must
acknowledge, as did the district court, the interest of the state
in ensuring the independent and effective operation of the agency
charged with protecting the state’s children. That overriding
interest precludes this court from affording Ernst compensation
for whatever injuries she may have suffered at the hands of CYS.
We will affirm the district court’s grant of judgment in favor
of CYS and the CYS defendants. We will reverse the grant of
judgment in favor of Ernst against Borzillo and remand for entry
of judgment in favor of Borzillo.
47
48