Dugan Legal Team Continues Dismissal Push With New Filing

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

Judge Hannah Dugan‘s legal team filed a memorandum Thursday expanding on its argument that the case against her should be dismissed.

In a motion that takes readers through a brief history of English and American legal processes, Dugan’s lawyers continue to argue that her prosecution violates her judicial immunity and threatens the separation of powers fundamental to the design of the U.S. government. The roots of Dugan’s immunity, her lawyers argue, run “deeper roots than the Republic itself.”

Dugan, a Milwaukee County Circuit Court judge, is being prosecuted for allegedly obstructing a U.S. Immigration and Customs Enforcement (ICE) operation. She faces a one count of obstruction and one count of concealing an individual to prevent their arrest.

The charges were brought based on an event that took place outside of Dugan’s courtroom in the Milwaukee County Courthouse on April 18. An undocumented Mexican immigrant, Eduardo Flores-Ruiz, was appearing in Dugan’s courtroom that day on misdemeanor battery charges. Federal agents arrived outside the courtroom to arrest Flores-Ruiz. Federal prosecutors allege Dugan sent agents to the chief judge’s office, then directed Flores-Ruiz and his attorney to use a side door out of her courtroom, and told him he could appear virtually for his next hearing. The side door leads to the same public hallway as the main door. Agents arrested Flores-Ruiz outside the courthouse.

Her attorneys are arguing that Dugan’s conduct falls within official acts of her office and are asking the Court to make a decision on whether they are official acts before the case moves forward any further. If they are official acts, then prosecution for them is barred outright.

While Dugan disputes some of the details in the indictment and charging documents, her attorneys argue that even those do not describe any conduct that is not an official act of her office. They are requesting the court make a decision on whether the alleged actions were official conduct using the information in those documents.

“Dismissal here flows from a straightforward application of long-settled law. The indictment itself is an ugly innovation. Its dismissal will not be,” her attorneys Dean Strang, Steven Biskupic, Jason Luczak and Nicole M. Masnica wrote in the memorandum.

Earlier this month, Dugan’s legal team filed a motion seeking dismissal of the case. Her attorneys argued that her judicial immunity protects her from criminal prosecution for official acts of her office. They are using a new legal precedent set by the U.S. Supreme Court in its decision on Trump v United States. In that case, the court found the president enjoyed “absolute immunity” from prosecution for actions within his “exclusive sphere of constitutional authority.”

Judge Lynn Adelman, who is presiding over the case, has not made a ruling on the motion. The deadline for motions is May 30. Responses — in this case a response from the prosecution on the motion to dismiss — are due June 9.

In the memorandum, Dugan’s attorneys connect their client’s judicial immunity to constitutional principles established at the founding of the U.S.

“This is an extraordinary prosecution that poses a threat to federalism and judicial independence. In practical terms of American governmental design, consider starkly what it proposes,” her attorneys wrote. “One morning, plainclothes federal agents with badges and baseball caps on a bench outside a state courtroom decided how they wanted a judge to control that courtroom and the people in and near it. For not doing as they wished, the judge faces federal criminal charges.”

Her attorneys go further into legal history, stating, “By 1607, judicial immunity would have barred this prosecution in England, or in the colonies that became the United States of America. Today in our United States, judicial immunity bars it still.”

Again, Dugan’s attorneys pointed to the recent Supreme Court decision in Trump v United States. The court’s decision relied on earlier rulings upholding judicial immunity in establishing the president’s immunity and its decision “clarified that the President is entitled to the same immunity from prosecution for official conduct that judges have long held,” the attorneys wrote.

Her attorneys go into detail about what courts have previously determined constitutes an unofficial act of a judge, for which they could be criminally prosecuted, as well as official acts of judges deemed immune. They contend her actions fall within the latter, noting that judges have broad authority to control the movements, behavior, even dress, of people in their courtroom; and that her interaction with the federal agents was an attempt to ascertain what authority they had to “snatch” a defendant from the courthouse.

“The indictment describes actions concerning how and when Judge Dugan handled a defendant’s appearance in court, within the parameters of her morning docket and calendar… what flexibility she would allow him for future appearances… which courtroom door a defendant would use to emerge into the same public hallway at the same time he would have in any event: through the doors at the end of the courtroom’s aisle, or instead at most 15 feet away through the door just beside one of the courtroom’s interior walls,” the attorneys wrote.

The prosecution is also threatening the separation and delegation of powers to the federal government and the states, the attorneys argued. The tenth amendment to the Constitution states that any powers not delegated to the federal government are reserved for the states.

“Nothing in the Constitution allows the federal government to superintend the administration and case-by-case, daily functioning of state courts as this indictment proposes,” her attorneys wrote. 

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