MILWAUKEE (CN) - A federal judge issued a final decision on Tuesday denying Milwaukee County Circuit Court Judge Hannah Dugan's motion to dismiss the obstruction charges brought against her.

FBI agents arrested Dugan, 66, in April at the county courthouse and later indicted her on charges of obstruction and intentionally concealing an individual set for deportation, both felonies.

The government claims she helped Eduardo Flores-Ruiz, who had been accused of living in the country illegally for 25 years, evade ICE agents waiting outside her courtroom by leading him out a private side door.

Dugan quickly filed a motion to dismiss the charges, arguing she is protected from criminal prosecution by the United States' long history of judicial immunity. She said she acted well within her duties to maintain control of the courtroom.

Federal Magistrate Judge Nancy Joseph agreed with the government in her 37-page recommendation to U.S. District Judge Lynn Adelman that he deny the motion.

Adelman, a Bill Clinton appointee, ruled on Tuesday in a 27-page opinion that Dugan was not protected by judicial immunity when she interacted with Immigration and Customs Enforcement officers outside of her courtroom in April.

"The court has not accepted a common law immunity rule as broad as defendant suggests," Adelman said.

Adelman walked through a history of judicial prosecution and immunity cases in the opinion, pointing to times when immunity was enjoyed and when it reached its limit, concluding that neither common law nor Congress has gone so far as to give judges immunity from obstruction and knowing interference of federal officials.

He did concede a judge cannot be held criminally liable for judicial acts done in good faith, but relying on the facts of the indictment provided by the government, Dugan's actions appear not to fall into that narrow immunity, he says.

According to Adelman, even official acts performed in tandem with bribery are subject to criminal liability because they are part and parcel with the criminal act - in other words, a judge may use judicial acts as the means to accomplish an unlawful end.

Most of the cases Dugan cited in her motion to dismiss were swept to the side by Adelman as immaterial to the facts at hand, which come from the indictment. Those facts, Dugan's attorneys have said, are false.

The distinction that takes this case out of the shield of immunity, according to Joseph, is that criminal law was violated. Joseph concedes - and Adelman agreed - that Dugan's actions were within the scope of her authority as a judge, but that she is still liable for illegal acts.

"It is well-established and undisputed that judges have absolute immunity from civil lawsuits for monetary damages when engaging in judicial acts," Joseph said. "... Review of the case law does not show an extension of this established doctrine to the criminal context.

This is not a case where the federal government is attempting to overreach into state sovereignty, according to Adelman. If it were, the opinion suggests the case would look a lot different.  

Dugan charged Joseph with being "misguided" in her objection to the recommendation, asserting that her understanding of judicial immunity case law is flawed and exposes state judges to federal prosecution for every official act.

"The [U.S. Supreme] Court was unmoved by dissenters' complaint that injunctive relief carried with it the threat of contempt - with the possibility of a fine or even imprisonment - which could deter even the most courageous judge from exercising free and independent judgment," Adelman said of arguments like this one.

Flores-Ruiz appeared in Dugan's courtroom on April 18 for a pretrial conference related to multiple counts of battery and domestic abuse. He was sitting in the gallery when ICE agents arrived, according to FBI agent Lindsay Schloemer in an affidavit in support of Dugan's arrest.

The FBI claims in the second felony count against Dugan that she ordered the agents to speak to Chief Judge Carl Ashley on a different floor and quietly handled matters related to Flores-Ruiz's criminal case off the record before ushering him and his attorney out of the courtroom through a side "jury door" and down a private staircase.

Surveillance footage from the courthouse obtained by Courthouse News shows Dugan leading a group of ICE agents to the chief judge's office at the end of the hall on the same floor.

Minutes later, Flores-Ruiz and his lawyer can be seen coming out of the jury door directly next to the main courtroom door on the same floor and calmly walking to the elevators while two ICE agents follow. The agents follow him all the way outside onto 10th Street, where they arrest him.

Jason Luczak, one of Dugan's attorneys, said after a hearing in June that the evidence clearly shows that Dugan did not do what she is accused of: "The case is very different from how the public thinks of it right now."

In all, Dugan's arguments require further evidentiary analysis of the disputed facts that simply cannot be resolved on a motion to dismiss, according to Adelman.

Adelman will preside over a jury trial to be scheduled next week. If convicted, Dugan could face one year in prison and a $1,000 fine for concealing Flores-Ruiz and five years in prison and a $250,000 fine for obstructing federal agents.

Source: Courthouse News Service