Federal judge recommends case against Milwaukee judge who allegedly helped undocumented man evade arrest continue
A federal magistrate judge in Wisconsin has recommended that the case against a Milwaukee judge accused of helping an undocumented man evade arrest by immigration authorities not be dismissed.
Judge Hannah Dugan, 65, was arrested in April and charged in a two-count federal indictment alleging that she knowingly concealed a person sought for arrest by immigration authorities and for obstruction of official Department of Homeland Security removal proceedings.
Lawyers for Dugan, in part citing the U.S. Supreme Court's decision in President Donald Trump's immunity case, have argued she has judicial immunity for official acts and that her prosecution is unconstitutional.
Late Monday -- in a non-binding decision -- U.S. Magistrate Judge Nancy Joseph issued a 37-page report and recommendation, reaching the conclusion that there is no shield from prosecution in this case.
The recommendation will be presented to U.S. District Judge Lynn Adelman, who will make the final decision on the motion.
"It is well-established and undisputed that judges have absolute immunity from civil lawsuits for monetary damages when engaging in judicial acts," the magistrate judge wrote in her decision. "This, however, is not a civil case. And review of the case law does not show an extension of this established doctrine to the criminal context. Accordingly, I recommend that Dugan's motion to dismiss the indictment on judicial immunity grounds be denied."
Joseph noted that while many of Dugan's alleged actions could arguably be considered judicial acts, that does not mean prosecution is barred "where the indictment alleges that the acts were done 'corruptly' or to facilitate a violation of the criminal law."
"What matters is whether the judge, even in performing her official duties, is accused of committing a crime," Joseph wrote.
According to federal prosecutors, Dugan encountered federal agents in Milwaukee County Circuit Court on April 18, who were there to arrest an undocumented man appearing in her courtroom on a battery charge.
According to prosecutors, after speaking to the agents, Dugan directed them to the chief judge's down the hall and then sent the man and his attorney out a non-public door in an alleged attempt, authorities claim, to help him evade arrest on immigration violations.
The man was later arrested.
The magistrate judge also recommended that Dugan's motion to dismiss the case based on the contention that her prosecution violates the 10th Amendment's separation of powers be denied.
The magistrate stressed that her recommendation is not a ruling on the merits of the case or on facts disputed by the parties.
"Dugan is presumed innocent, and innocent she remains, unless and until the government proves the allegations against her beyond a reasonable doubt to a jury at trial," Joseph wrote.
The parties in the case have 14 days to file any written objections to Joseph's report and recommendation.
"We are disappointed in the magistrate judge's non-binding recommendation, and we will appeal it," one of Dugan's attorney Steven Biskupic said in a statement to the Associated Press. "This is only one step in what we expect will be a long journey to preserve the independence and integrity of our courts."
Dugan has pleaded not guilty to the federal indictment. The case had been set for trial for July 21, but was pushed back until the immunity issue was settled. A new trial date has not been set.
The Wisconsin Supreme Court suspended Dugan in the wake of her arrest, stating in an order that it found it was "in the public interest that she be temporarily relieved of her official duties."
