The State of New York assigns lawyers to represent indigent clients. These public defenders are often called 18-b lawyers, based on a provision of the law which provides for this service. These lawyers are not paid a lot of money for this work, and the low pay has been a sticking point for years. One of these lawyers did something about: he filed a lawsuit over the compensation.
The case is Bliven v. Hunt, decided on August 28. Bliven argued that he was denied appropriate compensation by judicial officials in retaliation for aggressively doing his job. In particular, he filed what he called "disfavored motions" in approximately 15 child protective and custody cases in demanding to review entire case files. His payment vouchers were reduced without any explanation, and he was told by at least two defendants that the real reason for the pay reductions was his motion practice in the childrens' rights cases. He claimed that the judges threatened to file a grievance against him because he continued to complain about the low pay, and that he was forced to withdraw from the Rule 18-b panel, costing him income.
In any other context, Bliven would probably have a case. The government cannot deny your benefits in this manner. This case is different. The general rule is that you can't sue judges for their actions taken in the course of their judicial capacity. There are reasons for this rule, including the possibility that disgruntled litigants will go after the judges. Even malicious judicial acts are immune from suit. That rule, among others, doomed the case. The Court of Appeals (Kearse, Sack and Katzmann) affirms the district court's order dismissing the case.
How do we know that a judge is immune from suit? The judge is immune if the challenged decision is case-related. In Mitchell v. Fishbein, 377 F.3d 157 (2d Cir. 2004), the defendants were not immune from suit because the lawsuit concerned their role on a committee in which they named lawyers to the 18-b panel. As the committee did not determine which lawyers would work on particular cases, the committee was being sued over its administrative, not judicial, role.
This case is not Mitchell. Judge Kearse writes, "In contrast to the Committee functions in Mitchell, the determination by a judge as to whether a given fee request by an 18-b Panel member is reasonable is clearly case-related." For example, under the compensation rules, the judge decides whether the lawyer should be compensated for work "reasonably" expended out-of-court, i.e., in the office. This is a case-specific inquiry, and therefore Bliven is suing judges in their capacity as judges, not administrators. By way of comparison, the Second Circuit notes that laws in which the prevailing party in a lawsuit can recover full attorneys' fees (particularly in civil rights cases) also require the judges to consider case-specific factors, such as whether the lawyer reasonably spent X number of hours on the case.