If you are scratching your head over the headline on this piece, imagine how I felt when reading the Second Circuit's decision in the case of Root v. Liston, 05-2004-cv,decided last week.
The facts of the case are simple enough. Root was arrested and charged with failure to appear. A judge of the Suprerior Court set bond at $1,000. When a bondsman appeared at the local state police barracks to secure his liberty, the state police called Liston, a prosecutor. Liston raised the bond to $250,000, on his own authority.
Why'd he do that? After a judge set bond, Liston learned that Root had said to his ex-wife one-liquored up night: "If I had a gun, I could kill [a prosecutor in Liston's office] and 50 cops." The ex-wife told her therapist, who called 911, who called the prosecutor. Liston was seeking a warrant for an arrest for threatening at the time he jacked up the bond. It took three days to get that warrant signed.
I represented Root in the threatening case, which was dropped by the way, and I represent Root in the federal courts. We've sued Liston for acting outside his authority as a prosecutor. Nothing in Connecticut law gives prosecutors the right to increase a court-set bond. The trial court granted Liston's motion for summary judgment. We headed to the Second Circuit confident of victory.
And we won, sort of. The Circuit concluded that Liston acted outside the scope of his function as a prosecutor. Thus, he had shed the absloute immunity prosecutors enjoy when acting within their function as adovcates under Kalina v. Fletcher and Imbler v. Pachtman.
Case closed? Not hardly.
The Court then concluded that Liston was performing a judicial function when he set bond. That was our point exactly. At the moment he altered a court-set bond, his act was ultra vires. He had usurped a judicial function.
But watch this twist: The Court held that because he was performing a judicial function, he was entitled to absolute judicial immunity.
The Court relied on no case to stand for the proposition that Liston could alter a court set bond. It relied on no state statute that gave the prosecutor such authority. The decision is replete with qualifications and cavills that lead to the conclusion that Liston had just barely had colorable authority to do what he did. Why stretch reason to the breaking point to reach this result?
I file today a motion for a rehearing and a request that the issue be heard en banc. Our entire point in the appeal was that a prosecutor who sheds his role as advocate and usurps the judicial function violates the law. The Second Circuit seems to have concluded that when a wolf is dressed in sheep's clothing, he gets all the rights, privileges and perquisites of a sheep.
Root v. Liston is badly decided. Don't take my word for it. Read it yourself. Read it and Weep
