Abinel Zemon v. Associate Justice Guzman

This federal case is brought

by an aggrieved litigant who asks us to step in and change the way

some things turned out for him in state court in Massachusetts.

Specifically, appellant Abinel Zenon sought a declaratory judgment

labelling as unconstitutional a protective order that remains in

effect in his now-closed state criminal case. This request was

denied by the federal district court on appellee's motion to

dismiss. Because we hold that the state court judge's actions are

shielded from this attack by the doctrine of judicial immunity, we

affirm.

BACKGROUND1

In 2013, Zenon was at the Springfield District Court for

the Commonwealth of Massachusetts ("Springfield court"), attending

to some driving charges unrelated to this case.2 While there, he

wound up getting into an altercation with two court security

officers who, according to Zenon, attacked him without

provocation, all the while "making inappropriate comments to him

regarding his ethnicity." As Zenon tells it, one of the officers,

Alexander Sierra, a former member of the Springfield Police

1 As is required in reviewing a ruling on a Rule 12(b)(6)

motion to dismiss, we rely on the factual account set forth in

Zenon's amended complaint, unless otherwise noted. Schatz v.

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)

(instructing us to "take the complaint's well-pled (i.e., nonconclusory,

non-speculative) facts as true . . . .").

2 We note the exact date of the incident is not in the record.

- 3 -

Department, already had a reputation around the courthouse for

violence. When the scuffle ended, Zenon found himself charged and

arraigned on two counts of assault and battery on the officers.

Based on Zenon's attorney's investigation of the

incident, Zenon filed a notice of intent to assert the affirmative

defense of self-defense. To get more information with which to

bolster his case, Zenon subpoenaed administrative records from the

Springfield court, seeking all written incident reports authored

by Officer Sierra. In response to the subpoena, the records were

filed with the court and delivered in due course to appellee

Associate Justice Margaret Guzman ("Judge Guzman"), the judge

overseeing Zenon's criminal case.

Protective order

On July 29, 2015, Judge Guzman, following a chambers

conference, turned over Officer Sierra's trial incident reports

for the preceding two years, and ordered the Commonwealth to

produce Springfield Police Department reports involving Officer

Sierra for the same two-year period.3 But she released the records

to defense counsel with restrictions, making the documents subject

to a part written/part oral protective order. The written ruling

was encapsulated in a pre-printed order entitled "PROTECTIVE ORDER

3 The records indicated that Officer Sierra reported using

force against twenty-three individuals, and that an additional

person had filed a complaint of excessive force against him with

the police department.

- 4 -

FOR DEFENSE COUNSEL."4 The written order, amongst other things,

permitted defense counsel to review the "presumptively privileged"

records for purposes of preparing for trial, but prohibited her,

without prior court approval, from disclosing any of the

information to anyone, including Zenon or her investigator (but

not including colleagues). It also forbade her from contacting

any of the individuals named in the reports without court

permission. From the bench, Judge Guzman likewise allowed the

Commonwealth access to the records with similar restrictions.

As Zenon's criminal case proceeded, his counsel began to

feel hampered by the prohibitions imposed by the court and

repeatedly petitioned to have them lifted. Prior to receiving the

records, defense counsel, on her own, had investigated other

alleged episodes involving Officer Sierra and had identified and

contacted several participants and witnesses to discuss their own

experiences with him. Also, rumors abounded about other Officer

Sierra dust-ups but the protective order thwarted counsel's

efforts to dig deeper. By September 2015, though, she had partial

4 The authorized form for the protective order may be found

just after the Reporter's Notes that follow the text of Rule 17 in

Massachusetts' volume of court rules. The form includes spaces

for the docket number, the defendant's name, the judge and defense

counsel's signatures, the date, and the defense counsel's address

and bar number. All other provisions, including the specific

restrictions, are part of the pre-printed form.

- 5 -

success in convincing Judge Guzman to vacate the protective order

as to at least two incidents,5 but that was it.

On September 23, 2015, Zenon filed a petition for

extraordinary relief with the Supreme Judicial Court of

Massachusetts (the "SJC") to stay his criminal trial and vacate

the protective order. This petition was denied without a hearing

by a single justice, and Zenon pressed an appeal to the full court.

A few days later, on October 5, 2015, Zenon entered a plea on the

assault and battery charges: Zenon was not required to stipulate

to the conduct alleged, and the charges were continued without a

5 As described in Zenon's amended complaint, in one incident

a pregnant African-American teenager was crying in the hallway

outside the courtroom where her boyfriend was being detained.

After she failed to compose herself on instructions from Officer

Sierra, he threw her face down on the floor and placed his knee on

her back, then pulled her upright and pushed her against the wall.

He proceeded to hit her repeatedly in the face. Several hours

later, the young woman miscarried her baby. She was later charged

with assault and battery on Officer Sierra. This episode was

confirmed by several bystanders, including an attorney.

The second incident also involved an African-American woman

who had appeared before a judge on a child support matter. The

judge instructed her to file some paperwork with the clerks'

office; however, at the clerks' office she was told to return to

the courtroom to get her file. She was intercepted at the

courtroom door by a court security officer and told that she was

trespassing. Officer Sierra followed her back to the clerks'

office where she was explaining the situation to the clerk.

Officer Sierra grabbed her, threw her to the ground, and handcuffed

her. She too was charged with assault and battery on Officer

Sierra.

- 6 -

finding of guilt. But by its terms, the protective order remained

in effect.6

Following the disposition of Zenon's criminal case,

other individuals who had been charged with assault and battery

under similar circumstances, as well as attorneys involved in other

courthouse incidents, contacted Zenon's attorney seeking

information about Officer Sierra. Although Zenon had authorized

his attorney to provide these people with relevant information, he

and his attorney had been prevented by the protective order from

sharing any information about Officer Sierra.

On February 4, 2016, a full panel of the SJC denied

Zenon's request to further consider his petition to vacate the

protective order. Zenon v. Commonwealth, 44 N.E.3d 858, 859 (Mass.

2016). Summarizing the prior proceedings, the court wrote:

"[Zenon] sought certain third-party records in support of his claim

that the alleged victim was in fact the first aggressor." Id. at

859 (citing Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005)).

The court continued: "The judge issued the protective order

concerning these records, apparently following the Dwyer

6 Paragraph Six of the protective order reads in part:

"Notwithstanding the entry of any order terminating the case, this

Protective Order shall remain in effect unless terminated by entry

of a Court order."

- 7 -

protocol." Id. (citing Commonwealth v. Dwyer, 859 N.E.2d 400,

414-19 (2006)).7

In explicating its decision, the SJC focused on the

procedure available to Zenon when he initially filed his motion

(that is, while the criminal charges were still pending). The

court concluded that it did not need to exercise its "extraordinary

power of general superintendence under c. 211, §3" to intervene in

the workings of the Springfield court because Zenon had "an

adequate alternative remedy" in the normal trial and appellate

court processes. Id. at 859-60 (citations and internal quotation

marks omitted).

Had Zenon been tried and convicted of any offense, he

could have challenged the protective order on direct

appeal. . . . If Zenon believes that the records have

any continuing significance now that the charges have

been resolved, he could move in the District Court for

termination or modification of the protective order and,

if such a motion is denied, appeal in the ordinary course

from that ruling.

Id. at 859.

Federal litigation

Opting not to follow any of the SJC's suggested pathways,

Zenon filed a complaint in federal court on July 14, 2016, seeking

a declaratory judgment that the protective order violates his First

Amendment rights, pursuant to 42 U.S.C. § 1983, and naming as

defendants Judge Guzman and the District Court Division of the

7 We'll talk about the Dwyer protocol, announced by the SJC

in 2006, in our analysis section.

- 8 -

Massachusetts Trial Court.8 Judge Guzman responded with a Rule 12

motion to dismiss, making three principal arguments: that she was

protected from suit by sovereign immunity, pursuant to the Eleventh

Amendment; that the federal court was barred from hearing the suit

based on the doctrines of Younger and Rooker-Feldman abstention;

and that the complaint was barred by collateral estoppel. Zenon

then amended his complaint, dropping the Commonwealth Trial Court

as a defendant. In due course a magistrate judge analyzed the

amended complaint and Judge Guzman's motion, and recommended that

Judge Guzman's motion be denied. Thereafter, in a written

objection to the report and recommendation, Judge Guzman took the

opportunity to add a new argument to her motion: judicial immunity.

In the end, after citing the confusion caused by Zenon's amendment

to his complaint mid-motion practice, as well as "considerations

of comity," the district judge permitted Judge Guzman's latelyadded

argument, and ruled that it carried the day, declining to

adopt the report and recommendation and dismissing Zenon's claims.9

8 And we are mindful that § 1983 does not mandate exhaustion

of state court remedies. See, e.g., Steffel v. Thompson, 415 U.S.

452, 472–73 (1974) ("When federal claims are premised on [§ 1983]

-- as they are here -- we have not required exhaustion of state

judicial or administrative remedies, recognizing the paramount

role Congress has assigned to the federal courts to protect

constitutional rights.").

9 The court also concluded that both the Younger and Rooker-

Feldman abstention doctrines, though an imperfect fit, posed a bar

to relief, holding that they "cast a shadow over Plaintiff's case."

Although Zenon challenges this finding on appeal, because we rest

- 9 -

ANALYSIS

Zenon's appeal (as now distilled) brings the matter to

our door for an examination of whether Judge Guzman is protected

from this lawsuit by judicial immunity. First, some parameters

for our review.

With respect to a motion to dismiss, we take as true the

allegations of the complaint, as well as any inferences we can

draw from it in the plaintiff's favor. Fed. R. Civ. P. 12(b)(6).

To assess the adequacy of the complaint, our circuit has instructed

that the review should be handled like this: first, "isolate and

ignore statements in the complaint that simply offer legal labels

and conclusions or merely rehash cause-of-action elements[,]" then

"take the complaint's well-pled (i.e., non-conclusory, nonspeculative)

facts as true, drawing all reasonable inferences in

the pleader's favor, and see if they plausibly narrate a claim for

relief." Schatz v. Republican State Leadership Comm., 669 F.3d

50, 55 (1st Cir. 2012) (citing Ocasio–Hernández v. Fortuño–Burset,

640 F.3d 1, 12 (1st Cir. 2011)) (discussing, among other cases,

Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007)). "Plausible, of course, means

something more than merely possible, and gauging a pleaded

situation's plausibility is a 'context-specific' job that compels

our ruling on the doctrine of judicial immunity, we leave

abstention on the bookshelf for now.

- 10 -

us 'to draw on' our 'judicial experience and common sense.'"

Schatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).

When analyzing a defense of judicial immunity, our

review is much the same. "Affirmative defenses . . . may be raised

in a motion to dismiss . . ., provided that the facts establishing

the defense [are] clear 'on the face of the plaintiff's

pleadings.'" Santana-Castro v. Toledo-Davila, 579 F.3d 109, 113-

14 (1st Cir. 2009) (quoting Trans–Spec Truck Serv., Inc. v.

Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008)) (alterations

in original). And we are mindful that we may consider "not only

the complaint but also matters fairly incorporated within it and

matters susceptible to judicial notice" without converting the

motion to dismiss into a motion for summary judgment. In re

Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).

Ultimately, when the facts establishing the defense appear within

the four corners of the complaint, and upon review there is "no

doubt" that the plaintiff's claim is barred by the raised defense,

dismissal is appropriate. Blackstone Realty LLC v. F.D.I.C., 244

F.3d 193, 197 (1st Cir. 2001) (quotation marks omitted).

In undertaking this process, we have considered hearing

transcripts from the Springfield court, attached as exhibits to

the amended complaint. Schatz, 669 F.3d at 55-56 (noting that the

court may consider, on a motion to dismiss, documents attached to

or incorporated into the complaint).

- 11 -

Now, with the rules of play in place, we proceed to

consider de novo whether, based on the facts pled, judicial

immunity bars Zenon's claims. When all is said and done, we

determine that Judge Guzman is entitled to immunity, as we explain.

A primer on judicial immunity

The time-honored doctrine of judicial immunity was set

forth long ago by the Supreme Court in Bradley v. Fisher, wherein

the Court observed, complete with requisite references to England

and the king, that judicial immunity "obtains in all countries

where there is any wellordered system of jurisprudence." 80 U.S.

(13 Wall.) 335, 347 (1871). Permitting judges to be questioned on

their rulings, the Court said, would lead to "continual

calumniations" and nothing short of the "subversion of all

justice." Id. at 348 (internal quotation marks and citation

omitted). The breadth of the protection is fulsome, shielding

judges even when their actions are malicious, corrupt, mistaken,

or taken in bad faith; its purpose not to buffer bad judges but

"for the benefit of the public, whose interest it is that the

judges should be at liberty to exercise their functions with

independence and without fear of consequences." Pierson v. Ray,

386 U.S. 547, 554 (1967) (internal quotation marks and citation

omitted). Therefore, it is an axiom of black letter law that when

a judge carries out traditional adjudicatory functions, he or she

has absolute immunity for those actions. Goldstein v. Galvin, 719

- 12 -

F.3d 16, 25 (1st Cir. 2013). And, the Supreme Court has recognized

that judicial immunity applies in the context of suits -- like

Zenon's -- that are brought under § 1983. Pierson, 386 U.S. at

554-55.

To determine if a judge is entitled to the full

protection of the doctrine's deflector shield,10 the Supreme Court

has assessed whether the judge's act was one normally performed by

a judge, and whether the parties were dealing with the judge in

his or her judicial capacity. Stump v. Sparkman, 435 U.S. 349,

362 (1978). Judicial immunity is appropriate unless a judge is

carrying out an activity that is not adjudicatory. Forrester v.

White, 484 U.S. 219, 227-28 (1988) ("Administrative decisions,

even though they may be essential to the very functioning of the

courts, have not similarly been regarded as judicial acts."). The

Forrester Court observed that "it was the nature of the function

performed, not the identity of the actor who performed it, that

informed our immunity analysis." Id. at 229.

The Supreme Court elaborated further in Mireles v. Waco,

explaining that immunity is overcome only in cases where a judge

is carrying out a nonjudicial action, or in instances where a judge

takes an action, though seemingly "judicial in nature," that is

10 And it's important to note: absolute judicial immunity

means not just immunity from damages, but immunity from suit

altogether. Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

- 13 -

"in the complete absence of all jurisdiction." 502 U.S. 9, 11-12

(1991) (per curiam) (citing Forrester, 484 U.S. at 227-29; Stump,

435 U.S. at 356-60; Bradley, 80 U.S. (13 Wall.) at 347).11

"Accordingly," the Mireles Court instructed, "as the language in

Stump indicates, the relevant inquiry is the 'nature' and

'function' of the act, not the act itself." 502 U.S. at 13 (quoting

Stump, 435 U.S. at 362).

In accordance with this analytic tradition, we look

closely at Judge Guzman's actions -- "the function performed" --

in issuing and maintaining the protective order. In Zenon's eyes,

she was -- plain and simple -- a gatekeeping administrator for the

court's personnel records. But as Judge Guzman sees things, she

was performing (in the words of the district court) "the breadand-

butter adjudicatory function of a judicial officer" --

refereeing a discovery dispute.

The battle of the procedural rules

The parties each attempt to justify their position by

drawing our attention to the state procedural rules they relied on

11 In such circumstances, a state actor who happens to be a

judge and who violates the Constitution while acting as an

administrator might properly be subjected to suit under 42 U.S.C.

§ 1983. In re Justices of Supreme Court, 695 F.2d 17, 21 (1st

Cir. 1982). But as then circuit-judge Stephen Breyer explained,

"§ 1983 does not provide relief against judges acting purely in

their adjudicative capacity, any more than, say, a typical state's

libel law imposes liability on a postal carrier or telephone

company for simply conveying a libelous message." Id. at 22.

- 14 -

in connection with the contested state court rulings. Zenon, in

his amended complaint, asserts that he made a request for

administrative court records pursuant to Rule 2(2) of the Uniform

Rules on Subpoenas to Court Officials, which, according to Zenon,

governs public access to these records. Mass. Trial Court Rule

IX(2)(2). This rule provides that an "official keeper of the

records of the Trial Court shall provide an attested copy of court

records or administrative records to a party who requests . . .

such records . . . ." Mass. Trial Court Rule IX(2)(2). As he

tells us, he sought internal records from the Trial Court's

Executive Office; records generated pursuant to the administrative

functioning of the court and completely unconnected to any criminal

or civil proceeding before the court. Continuing on, he says that

the production of this material could not properly be viewed as a

discovery motion because the state's criminal procedural rule,

Rule 14, only applies to material in "the possession, custody or

control of the prosecutor, or persons under the prosecutor's

direction and control . . . ." Mass. R. Crim. P. 14(a)(1)(A).

And clearly, Zenon argues, the Massachusetts trial court records

are not subject to the prosecutor's direction or control. Again,

to put it simply, Zenon urges that in considering his request for

court documents, Judge Guzman necessarily and exclusively had to

have been exercising administrative authority over administrative

records.

- 15 -

In response to Zenon's document request, Judge Guzman

issued a pre-printed stock order which cites to Rule 17(a)(2) of

the Massachusetts Rules of Criminal Procedure. This rule

authorizes the clerk to issue a summons to a person "to produce

the books, papers, documents, or other objects designated therein

. . . within a reasonable time prior to the trial or prior to the

time when they are to be offered in evidence . . . ." Mass. R.

Crim. P. 17(a)(2). But notwithstanding the rule number referenced

in the order, Judge Guzman explains in her brief that, contrary to

Zenon's assertions, her protective order is best characterized as

a garden-variety discovery order, issued in accordance with Rule

14, which governs pretrial discovery and procedures, including

protective orders. Mass. R. Crim. P. 14(a)(6).

Ultimately, we conclude that whatever rule got

referenced is not, at least in this instance, determinative of the

question we must answer here: what is the essential character of

Judge Guzman's actions in issuing the protective order?12

Remember, as the Supreme Court instructed in Stump and Mireles,

12 While the records themselves may be administrative, it is

the judge's action of overseeing their production with which we

are concerned. Mass. Trial Court Rule IX is described as a

discovery rule by the Massachusetts Practice Series. 49 Mass.

Prac., Discovery § 1:31. In this case, we refrain from opining as

to whether requests to the trial court made pursuant to the Uniform

Rules on Subpoenas to Court Officials may always be considered

judicial in character, or may sometimes be classified as

administrative.

- 16 -

"the relevant inquiry is the 'nature' and 'function' of the act .

. . . In other words, we look to the particular act's relation to

a general function normally performed by a judge . . . ." Mireles,

502 U.S. at 13 (quoting Stump, 435 U.S. at 362). Accordingly, we

turn our attention to the record to better gauge Judge Guzman's

actions.

Zenon v. Guzman

We begin by taking judicial notice of the SJC's

February 4, 2016 order resulting from Zenon's interlocutory appeal

which we find relevant to our inquiry. Zenon, 44 N.E.3d 858. As

stated earlier, the SJC mentioned two cases of import to our

consideration: one, Adjutant established the standard to be

followed by a trial judge in determining what evidence of a

victim's prior aggressive behavior can be admitted at trial to

bolster a defendant's claim of self-defense. 824 N.E.2d at 10-

11. The other, Dwyer, refined the state's protocols for granting

defendants pre-trial access to statutorily privileged third-party

records of witnesses in criminal proceedings. 859 N.E.2d at 414.

Pursuant to the protocol, "presumptively privileged records" are

to be held by the court under seal, and reviewed only by defense

counsel after counsel has entered into " a stringent protective

order" containing "nondisclosure provisions." Id. at 418-19.

Therefore, in explaining its decision to deny Zenon appellate

relief, the SJC made clear that it understood Zenon's record

- 17 -

subpoena as a request for an Adjutant hearing. Equally as pellucid

is the SJC's understanding of Judge Guzman's in limine hearing as

a procedure in implementation of the Dwyer protocols. In

Massachusetts, both of these matters are routine pretrial

adjudicatory proceedings and generally subject to direct appellate

review. See Commonwealth v. Chambers, 989 N.E.2d 483, 493-94

(Mass. 2013) (ordering a new trial after trial court excluded

evidence of victim's prior act of violence); Rodriguez v.

Commonwealth, 871 N.E.2d 486, 487 (Mass. 2007) (noting that postconviction

relief is available for defendant who was unable to

obtain third party documents at trial).

How the SJC treats such hearings is, for us, strong

evidence of the nature and function of Judge Guzman's actions.

See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994) (noting

that the "Supreme Judicial Court, not this court, is the

authoritative interpreter of state statutes").13

Transcripts

Further evidence of how best to characterize Judge

Guzman's actions lies in the transcripts from the proceedings

13 Relatedly, in considering whether a judge's contested

action "is a function normally performed by a judge," the Stump

Court made an examination of "the expectations of the parties,

i.e., whether they dealt with the judge in his judicial capacity."

435 U.S. 362. The way that the SJC understands the procedural

rules governing the parties dispute surely bears on the

"expectations of the parties" for purposes of determining the

nature and function of Judge Guzman's actions here.

- 18 -

below.14 In her interactions with the parties, she specifically

talks about Adjutant, repeatedly expressing her concern about the

relevance and ultimate admissibility of the evidence that may be

unearthed through defense counsel's inquiries into the Officer-

Sierra incidents.

For instance, on July 29, 2015, Judge Guzman begins

the on-the-record hearing by describing the session as a

memorialization of "my first conference with both counsel," about

issues discussed in chambers. She continues:

[T]he first thing I did was review the

documents that were brought in by -- after the

defendant's request for unredacted and full

copies of the record potentially related to

the Adjutant issues that were filed. . . . I

reviewed those records and without my making

a determination of whether or not there is any

admissibility in what their use may be for

I've determined that a copy of all the

unredacted records will be provided to both

counsel and both counsel will endorse a

protective order. . . . [I]t was indicated to

defense that she may review all of these

records and at any time wishes -- if wishing

to discuss this matter with an investigator or

pursue inquiry through any of the information

contained in the records that she will notify

the Court through the clerk ex parte with a

motion for good cause to either inform[] both

parties of the contained information or to act

on that information.

Tr., July 29, 2015.

14 And to refresh the reader's recollection, the transcripts

were attached to Zenon's amended complaint.

- 19 -

On September 14, 2015, Judge Guzman tells counsel that

she wants to hear oral argument that morning concerning: "The

question about the Adjutant material, not just the access issue

but whether or not we are going to -- whether or not the request

is to use any information, call any witnesses . . . ." Tr., Sept.

14, 2015. When both attorneys indicate that they are not prepared

to go forward, Judge Guzman and defense counsel engage in a

colloquy about whether there will be a "pre voir dire argument on

that issue." Id. Judge Guzman goes on to express her concern

about the admissibility of the evidence that defense counsel is

trying to gather: "So there is [] really a very narrow area of

admissibility that we are focused on, and the first is whether or

not there is a valid defense claim that's been raised, and second,

whether there is a question as to who is the first aggressor."

Id.

Additionally, Judge Guzman addresses her obligation to

balance the privacy rights of those members of the community who

may be identified in the Officer-Sierra incident reports with

Zenon's rights to prepare his defense to criminal charges. These

concerns, she noted, encompassed Officer Sierra's interests in

maintaining the confidentiality of his personnel and medical

records. Tr., Aug. 26, 2015. Unmistakably then, Dwyer, though

not expressly mentioned, animated Judge Guzman's thinking, and the

- 20 -

stock protective order she issued reflects Dwyer's instructive

directives.15

We believe the issues addressed by Judge Guzman go to

the heart of a judge's role in regulating discovery and ruling on

the admissibility of evidence in a criminal trial. See Fed. R.

15 For example, on August 26, 2015, the parties convened, and

Judge Guzman explained her work in the preceding weeks:

There is very little case law in the area we are in,

which is a public display of official capacity action

and request to use records which are there is no grounds

to believe that there is an official determination of

first aggressor behavior by Officer Sierra. I have no

information that anyone has []ever made a formal

complaint against Officer Sierra alleging first

aggressor behavior that would qualify the Adjutant.

Tr., Aug. 26, 2015. During the same hearing, Judge Guzman cautions

Zenon's attorney about talking to other people, in connection with

Officer-Sierra incidents, because those other people might be

represented by counsel.

Later Judge Guzman addresses the protective order

directly, allowing the order to be loosened to permit defense

counsel to contact two people who had expressly waived

confidentiality. Here she expresses broader concerns:

Once the persons who are involved in the incidents make

a determination that they don't wish to have the

protection of the Court, the court is going to allow the

motion to expand. In fact, the protective order will

not be involved in those incidents. . . . The protective

order remains as to the other incidents that -- where is

no determination that the persons who are involved have

agreed to waive any confidentiality of any protection of

the courts. . . . And that is the fourth motion to

modify the protective order, and I think that covers all

the issues in that.

Id.

- 21 -

Crim. P. 12 and 16(d)(1); Mass. R. Crim. P. 17(a)(2); Nystedt v.

Nigro, 700 F.3d 25, 30-31 (1st Cir. 2012); United States v. Cianci,

378 F.3d 71, 100-01 (1st Cir. 2004); Dwyer, 859 N.E.2d at 418;

Adjutant, 824 N.E.2d at 12 (noting that trial judges are afforded

great discretion "in weighing the probative value of evidence

against any prejudicial effect it might have on a jury"). Although

we have been supplied with over a hundred pages of transcripts, we

need dig no further to conclude that Judge Guzman's concerns, and

resulting rulings, were inarguably judicial in both their "nature"

and their "function."16 Mireles, 502 U.S. at 13 (quoting Stump,

435 U.S. at 362).



* * *



16 Indeed, as we've already pointed out, in considering whether

a judge's contested action "is a function normally performed by a

judge," the Supreme Court in Stump looked at "the expectations of

the parties, i.e., whether they dealt with the judge in his

judicial capacity." 435 U.S. 362. As we see it, the parties'

expectations here, which Stump makes relevant, are evident.

Zenon's attorney requested the records to aid in preparing Zenon's

self-defense claim in the pending criminal case. The records were

released, subject to a protective order, which was announced during

the course of an adversarial hearing in the courtroom. Subsequent

hearings were held, during which counsel argued that the scope of

the protective order should be limited -- discussions in which the

judge and counsel focused on the potential admissibility of

evidence, pursuant to Massachusetts law. These circumstances

demonstrate that counsel was dealing with the judge in her "breadand-

butter" judicial capacity.

CONCLUSION

For the reasons stated, we affirm the district court's

decision. Each party to bear its own costs.