Feds Call Dugan’s Legal Arguments ‘Amorphous’

Judge Hannah Dugan’s courtroom on the sixth floor of the Milwaukee County Courthouse. Photo taken by Graham Kilmer.

The federal government and a magistrate judge are, so far, in agreement about Judge Hannah Dugan‘s defense: the caselaw just isn’t there to support it.

Dugan, a Milwaukee County Circuit Court Judge, is criminally charged with allegedly obstructing or impeding a U.S. Immigration and Customs Enforcement (ICE) operation and concealing an individual from arrest. The charges stem from an incident on April 18 at the Milwaukee County Courthouse involving an ICE arrest of an immigrant appearing in Dugan’s court room.

The federal government alleges Dugan sent immigration agents away from her courtroom after determining they were there to arrest an immigrant appearing there on criminal charges, Eduardo Flores-Ruiz. She then adjourned the matter and sent Flores-Ruiz out of the court room through a door used by jurors. Federal agents arrested him outside of the courthouse.

Dugan’s overarching argument is that the federal government’s indictment against her can’t stand because she has judicial immunity for any actions that fall within the official duties of her office. Following this reasoning, her legal team is seeking dismissal of the criminal charges against her.

Magistrate Judge Nancy Joseph disagreed with the legal theory and caselaw interpretations underpinning their arguments and recomended denial of the motion to dismiss. U.S. District Judge Lynn Adelman will make the final decision on the motion.

In a new filing in support of Joseph’s decision, the prosecution, led by U.S. Attorney Richard G. Frohling, disputes that her actions can be defined as official. And more importantly, prosecutors argue judicial immunity from prosecution does not exist.

“Quite simply, the Supreme Court has never retreated from its observation that judicial immunity does not apply in criminal cases,” the prosecution wrote in support of Joseph’s recommendation.

Prosecutors said Dugan’s arguments against the recommendation largely restated her previous motions to dismiss. They also back up Joseph’s conclusion there is no legal precedent for the judicial immunity Dugan claims.

Judge Joseph conducted an “an exhaustive review of the history of judicial immunity, she found no authority to bar this prosecution and rejected Dugan’s argument as an unprecedented and unauthorized expansion of judicial immunity outside its historical civil-law context,” prosecutors say. 

The prosecutors quoted liberally from Joseph’s recommendation to underline the contention that even if judges are committing official acts they are not immune from prosecution if those official acts violate criminal law, which the government alleges Dugan did.

Dugan’s legal team has sought to sketch a distinction between self-serving or corrupt judicial acts that can be prosecuted and Dugan’s own actions. Prosecutors called these arguments “gerrymandered… Amorphous and contestable.”

“If it were in fact true that judges enjoy general judicial immunity subject to certain defined exceptions, one would expect that some court at some point would have said so,” they argued. 

Federal prosecutors also try to take apart one of Dugan’s central contentions: that everything the federal government has alleged is an official judicial act. They called this a “misconception” and said, “The evidence will show that her actions included pausing an unrelated case, leaving her courtroom, disrupting proceedings in a colleague’s courtroom, clearing agents out of the public hallway, quickly returning to her courtroom, directing E.F.R.’s attorney to ‘take your client out and come back and get a date’ and then to go through the jury door and ‘down the stairs,’ stating she would take ‘the heat’ for her actions, and then physically escorting E.F.R. and his attorney into a non-public hallway with access to a stairwell that led to a courthouse exit.”

They allege Dugan was disrupting a hearing before a “different sovereign” (her colleague) and that this is not a function typically performed by state judges.

In their recent objection, Dugan’s legal team argued her prosecution leaves judges “vulnerable” to arrest and prosecution by federal agents the judge has “inconvenienced.” Dugan’s team was suggesting that Dugan did not impede the federal agents, but merely inconvenienced them that day. They argued that courtrooms regularly handle illegal drugs and material and that this leaves them “at the mercy of federal law enforcement.”

Prosecutors said “Dugan’s argument proves too much” and that it “does not translate into a need to recognize blanket judicial immunity for all acts done under the guise of a judge’s duties.”

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