Caputo grants summary judgment; damages to follow

Last updated: January 10. 2014 11:39PM - 5113 Views
By - rdupuis@civitasmedia.com

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Read Judge Caputo’s ruling with this story online at www.timesleader.com

WILKES-BARRE — Disgraced former Luzerne County Judge Mark A. Ciavarella Jr. is liable for civil damages sought by thousands of juveniles he sentenced to detention centers, U.S. District Judge A. Richard Caputo has ruled.

Caputo granted summary judgment to the thousands of class-action plaintiffs in an order filed Thursday, but said a determination of damages will be made at a later date.

Ciavarella is serving a 28-year prison sentence for accepting kickbacks and failing to report “finder’s fees” in connection with the development of private juvenile detention facilities in Pittston Township and Butler County. Ciavarella continues to reject the “kids-for-cash” label, insisting there was no link between cash he received and his decision as juvenile court judge to send children to those facilities.

According to Caputo, Ciavarella did deprive the plaintiffs of their constitutional rights — a point established by criminal proceedings and findings of the state Supreme Court, he wrote.

While Caputo acknowledged Ciavarella is immune for judicial actions, he stressed that Ciavarella was not protected by judicial immunity for non-judicial acts, laying out a detailed summary of the conspiracy surrounding creation of two for-profit juvenile detention centers.

Ciavarella then shuttled youths to the centers while secreting away cash funnelled to him in connection with the facilities’ development.

Judge’s summary

Caputo’s summary was drawn from testimony — including by Ciavarella himself — in previous court proceedings.

Another key factor leading to Caputo’s finding was Ciavarella’s failure to file a response to the plaintiffs’ Nov. 4 motion seeking summary judgment, meaning that all material facts set out in the plaintiffs’ suit are not in dispute, Caputo wrote.

Caputo’s 23-page memorandum reads like a blow-by-blow description of Ciavarella’s descent from “zero-tolerance” juvenile court judge to a convicted criminal whose malfeasance made international headlines, including these highlights:

• Ciavarella initiated the conspiracy in 1999, approaching fellow Luzerne County Judge Michael T. Conahan to suggest they bring together a team that had the financial ability to build a new juvenile detention facility. Attorney Robert Powell was among the guests at a meeting assembled by Ciavarella, who later contacted developer Robert Mericle.

• In July 2001, Powell told Conahan that lenders were balking, and that there could be no deal without promises from the county or some other entity that children would be sent to the facility if it was built.

• After Conahan became president judge in January 2002, he signed a placement guarantee stating county court would pay rent for a new facility. Conahan also told the county commissioners that the court would no longer send juveniles to the existing county facility on River Street.

• Ciavarella helped hire old River Street employees for the PA Child Care center in Pittston Township. Both Ciavarella and Conahan appeared on TV in December 2002 to discuss the need to shut down the facility — a move Ciavarella admitted was not done in his official capacity as a judge, Caputo noted.

• Caputo also notes how Mericle paid a $1 million referral fee to Powell that was intended for the two judges, funnelled through other sources. When a second facility was completed in Butler County in 2005, the judges were paid another $1 million via “bogus financial transactions.” They received another $150,000 in 2006 for an expansion in Pittston.

• Both judges kept track of the number of children sent to the local facility, and Ciavarella continued to monitor its profitability until 2008. Ciavarella sent between 217 and 330 juveniles per year to placement between 2003 and 2007, Caputo noted. From 2009 to 2011 the county sent between 31 and 38 juveniles to placement each year.

• Ciavarella concealed the payments “because he knew it ‘wouldn’t look good’ if he was receiving payments from Powell while also sending juveniles to his facility,” Caputo wrote, citing the ex-judge’s own words. Ciavarella collected $2.7 million between 2003 and 2007.

• Ciavarella acknowledged in a court proceeding that he violated his duty to inform the juveniles who appeared before him that he was receiving money from Powell and the two centers.

• Caputo wrote that Ciavarella’s “zero-tolerance” policy was an administrative, non-judicial act in which he dictated how probation officers would handle violations and charges against youths, adding that “coercing probation officers to change their recommendations is outside the role of a judicial officer.” Thus, that element of Ciavarella’s behavior was not protected by judicial immunity, Caputo noted.

‘Undisputed facts’

“The undisputed facts conclusively establish that Ciavarella knew that, as a result of his conduct, plaintiffs would be deprived of their right to appear before an impartial tribunal,” Caputo wrote.

In February 2011 Ciavarella was convicted after trial on 12 of 27 counts against him. Conahan pleaded guilty in July 2010 to a racketeering charge and is serving a 17½-year prison sentence.

Powell pleaded guilty in July 2009 to failing to report a crime related to payments made to the judges. He cooperated with federal authorities and was sentenced to 18 months in prison.

Mericle pleaded guilty in September 2009 to a charge of withholding information. His sentence has been delayed due to his cooperation under a plea agreement in other cases, including former state Sen. Raphael Musto. He will be sentenced on Feb. 26, it was announced this week.

Three companies behind the private, for-profit juvenile detention and treatment facilities reached a $2.5 million settlement in October, and Mericle reached a $17.75 million settlement in 2012.

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