Federal Judge Recommends Dugan Case Go To Trial

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

A federal judge is recommending that Hannah Dugan‘s criminal case proceed to trial.

Dugan is seeking a dismissal of the federal criminal charges brought against her in May for allegedly obstructing a U.S. Immigration and Customs Enforcement (ICE) operation. Federal Magistrate Judge Nancy Joseph issued a recommendation Monday to deny the motion.

Joseph’s recommendation now goes to U.S. District Court Judge Lynn Adelman, who will make a final decision on the motion. In light of the pending motion to dismiss, Adelman declined to set a trial date during a preliminary hearing in June.

The charges against Dugan stem from an incident at the Milwaukee County Courthouse on April 18 when immigration agents posted themselves outside of her courtroom to arrest Eduardo Flores-Ruiz, who was there facing misdemeanor battery charges. The federal government alleges Dugan confronted ICE agents, asking for a warrant, sent them to the Chief Judge Carl Ashley‘s office, adjourned Flores-Ruiz’s case and sent him out of a side door that leads to the public hallway where she had previously spoken with agents.

Dugan’s attorneys have argued she is protected from the prosecution by judicial immunity and was acting in her official capacity as a judge. Prosecutors counter that her actions were not official and that dismissing the charges would expand the definition of judicial immunity.

In her filing Monday, Joseph concluded that the case law and U.S. Supreme Court do not support Dugan’s case for judicial immunity.

Attorneys on both sides have looked back at the history of judicial immunity, which pre-dates the founding of the United States, to argue for and against the motion. Joseph did the same, and concluded that the rulings and decisions in these cases, beginning in England in the 1600s and stretching forward to decisions in the 20th century, do not support judicial immunity from criminal prosecution. Joseph found “weak evidence” for such immunity, she wrote.

“In short, I am unconvinced that these cases establish settled law on judicial immunity from criminal prosecutions related to official judicial acts as exists in the context of a civil lawsuit for monetary damages,” Joseph wrote.

Dugan’s attorneys had attempted to draw a distinction between actions that are self-serving, like accepting a bribe, and other actions that are not self-interested. Again, Joseph was not convinced, writing, “What matters is whether the judge, even in performing her official duties, is accused of committing a crime.”

Dugan’s attorneys have also pointed to the U.S. Supreme Court’s decision in Trump v. United States, where the court ruled the president has “absolute immunity” from prosecution for actions within his “exclusive sphere of constitutional authority.” They argued the decision supported immunity for judicial immunity from criminal prosecution for official acts because the court relied on earlier case law for judicial immunity to establish the immunity for the president.

“Perhaps in some future case the Supreme Court will expand the judicial immunity principles it has so firmly established in the civil context to the criminal prosecution of judges as Dugan urges,”Joseph wrote. “At this time, however, I am unconvinced that either the common law or the Trump decision provide the authority for applying the civil framework of absolute judicial immunity for judicial acts to the prosecution of judges for crimes that relate to official duties.”

Dugan’s defense team said in June that they are prepared to go to trial as soon as possible, and has maintained that her prosecution is an “attack on the judiciary” and a violation of the separation of powers.

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