Petition — Harvey v. Harris
Supreme Court brief1980
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Biiprame Court, U. i |
IN THE JAN 29 1980
SUPREME COURT OF THE U
October Term, 1979
79-1172
RICHARD G. HARVEY, JR.,
Petitioner,
vs.
SYLVESTER HARRIS, /
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
REx CAPWELL
524 Main Street
P.O. Box 247
Racine, Wisconsin 53401
(414) 637-1266
JOHN SUNDQUIST
222 East Mason Street
Milwaukee, Wisconsin 53202
(414) 271-3400
Counsel for Petitioner
January 29, 1980
HAMMERSMITH-BREITHAUPT PRINTING CORP., MILWAUKEE, WIS. 53212
Page
em: SNE ia aoe ae 1
Eco ec asec, TES SAT BN OPT SE TRENT Poets 2
CRI POUUINS isi 2
Statutory Provision Involved .........................:.00-00--- 3
emmnemnnent- ar We COG oc 3
Reasons for Granting the Writ ..............................-. 8
I. The decision below decides questions of the
scope of judicial immunity which are in con-
flict with applicable decisions of this Court 8
II. The decision below decides important ques-
tions of judicial immunity and the scope of 42
U.S.C. §1983, which have not been, but should
be, settled by this Court ............00.205.....2c..cccsses0 13
RL RONIINIIIIN Valedagiaclanut Ay ee ak he a 17
Appendix
1. Judgment of Court of Appeals .......... App.
2. Opinion of Court of Appeals .............. App. 3
3. Order Denying Rehearing .................. App. 20
4. Order Modifying Opinion .................. App. 21
5. Opinion of District Court on Motions
FOr WG Nissi ek ceesstines App. 22
6. Opinion of District Court on Motion
for Summary Judgment .................. App. 35
7. Opinion of District Court on Motions
Oh Th ct tee: App. 50
li
CITATIONS
Cases:
Barr v. Matteo, 360 U.S. 564 (1959) ow... 10
Bonner v. Coughlin, 517 F.2d 1311 (7th Cir.
1975), modified en banc, 545 F.2d 565 (1976),
cert. denied 435 U.S. 932 (1978) .........2.....ec00-0-- 15
Bradley v. Fisher, 80 U.S. 335 (1872) ........ 8,9, 10, 12
Civil Rights Cases, 109 U.S. 3 (1883) -.......002..... 9,13
El-Em Band of Pomo Indians v. 49th Dist. Agri-
cultural Fair Assn., 359 F.Supp. 1044 (N.D.
Ca seb tonica esha cascs garni Werdiiarieeriovens’ 15
Imbler v. Pachtman, 424 U.S. 409 (1976) ............ 16
Ingraham v. Wright, 430 U.S. 651 (1977) ............ 15
Johnson v. Hackett, 284 F.Supp. 933 (E.D. Penn.
RO asc ahe aSe hac a inprah niin Se lacnnonses cons tiavore 15
Monroe v. Pape, 365 U.S. 167 (1961) .................. 11, 16
New York Times Co. v. Sullivan, 376 U.S. 254
By BRP INUEY i CERO Bre 0 Sota 7-F Sg ACER 16
Paul v. Davis, 424 U.S. 693 (1976) ...........-..0-0--- 7, 15, 16
Pierson v. Ray, 386 U.S. 547 (1967) .............. 9, 10, 16
Screws v. United States, 325 U.S. 91 (1945) ........ 11,12
Skidmore v. Baltimore and Ohio R. Co., 167 F.2d -
54 (2nd Cir. 1948), cert. denied 335 U.S. 816
CN eT, 17
Smith v. Klecker, 554 F.2d 848 (8th Cir. 1977) ..15, 16
State v. Washington, 83 Wis. 2d 808, 266 N.W.2d
I RAPID) hi paiesscpctheesh Wik ies la eshsessictosinsereeccessous 4
iil
Page
Stump v. Sparkman, 435 U.S. 349 (1978) ....12, 14, 17
Tenney v. Brandhove, 341 U.S. 367 (1951) ............ 10
United States v. Classic, 313 U.S. 299 (1941) ...... 11
United States v. Fierson, 419 F.2d 1020 (7th Cir.
SI che iced cel saantecectatasra cities ceheGeasnopbeeababiivonss 9
United States v. Helstoski, — U.S. —, 99 S.Ct.
aS A a | BERNINI PASAY eg eaeenNe eat ey kenaraemenee 8, 10
United States v. Morgan, 313 U.S. 409 (1941) .... 10
Vlasak v. Gifford, 248 Wis. 328, 21 N.W.2d 648
ack 17
Washington v. Davis, 426 U.S. 229 (1976) .......... 13
Williams v. United States, 341 U.S. 97 (1951) .... 11
Yaselli v. Goff, 12 F.2d 396 (2nd Cir. 1926),
affirmed 275 U.S. $03 (1927) -.0.-552-.0.......--, 10
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
RICHARD G. HARVEY, JR.,
Petitioner,
vs.
SYLVESTER HARRIS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
The petitioner, Richard G. Harvey, Jr., respectfully
prays that a writ of certiorari issue to review the judg-
ment and opinion of the United States Court of Appeals
for the Seventh Circuit entered in this proceeding on
August 20, 1979.
OPINIONS BELOW
The opinion of the Court of Appeals, which appears
in the appendix hereto, App. 3, infra, is reported at 605
F.2d 330 (7th Cir. 1979). The opinion of the District
Court on motions after verdict, which appears in the
appendix hereto, App. 22, infra, is reported at 453 F.
2
Supp. 886 (E.D. Wis. 1978). The opinion of the District
Court on motion for summary judgment, which appears
in the appendix hereto, App. 35, infra, is reported at 436
F.Supp. 143 (E.D. Wis. 1977). The opinion of the Dis-
trict Court on motions to dismiss, which appears in the
appendix hereto, App. 50, infra, is reported at 419 F.
Supp. 30 (E.D. Wis. 1976).
JURISDICTION
The judgment of the Court of Appeals was entered on
August 20, 1979. A timely petition for rehearing en banc
was denied on November 1, 1979, by a six-to-four vote,
and this petition for certiorari was filed within 90 days of
that date. By order dated November 5, 1979, the Court of
Appeals modified the language of its August 20, 1979,
opinion. This Court’s jurisdiction is invoked under 28
U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether the decision of the Court of Appeals~in
a 42 U.S.C. §1983 damage action approving instructions
directing the jury to consider purely judicial acts of a
state court judge to determine whether the judge’s other
acts were racially motivated and malicious, resulting in
an award of $60,000.00 compensatory and $200,000.00
punitive damages, violates principles of judicial im-
munity.
2. Whether a state court judge may be held, as the
lower court found as a matter of law, both to have acted
without any semblance of jurisdiction so as to be stripped
of judicial immunity, and at the same time to have acted
under color of law and as an agent of the state within
the meaning of 42 U.S.C. §1983 and the equal protection
- clause.
3
3. Whether this 42 U.S.C. §1983 action which alleged
a violation of respondent’s Fourteenth Amendment right
to equal protection of the laws due to petitioner’s racially-
motivated actions was properly brought in federal court
where the action sounds in defamation, and respondent’s
interests in liberty or property were not affected.
4. Whether in an action pursuant to 42 U.S.C. §1983,
First Amendment privileges apply to a judge’s out-oi-
court comments upon and criticism of the official con-
duct of respondent police lieutenant.
5. Whether question 2 of the Special Verdict which
listed five separate categories of injury and allowed the
jury to answer whether respondent was injured in any of
those respects, was duplicitous and fatally defective.
STATUTORY PROVISION INVOLVED
Title 42 United States Code, §1983:
“Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any citi-
zen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceed-
ing for redress.”
STATEMENT OF THE CASE
The jurisdiction of the District Court was invoked un-
der 28 U.S.C. §§1343 and 1331, and 42 U.S.C. §1983.
Petitioner Harvey was the Judge of Racine County
Court Branch III, a court of general civil and criminal
jurisdiction. §§253.11, 253.12, Wis. Stats. He was first
4
appointed to the office in 1968, and was elected and re-
elected in contested elections for six-year terms in April,
1969 and April, 1975. Branch III was primarily devoted
to the handling of traffic and misdemeanor cases.
Respondent Harris was a lieutenant in the Racine Po-
lice Department and in charge of its Community Rela-
tions Department. Lieutenant Harris’ official duties in-
cluded making recommendations with respect to reduc-
ing or dismissing charges pending before Judge Harvey’s
Court. (Tr. 47, 48, 50, 51, 62, 98-100).
On January 11, 1974, one Dale Vorlob complained to
the District Attorney that he had been ambushed, beaten
and threatened by Lieutenant Harris on the preceding
night. The District Attorney referred this matter to the
Police Department for internal investigation. “When no
action was forthcoming, the District Attorney requested
Judge Harvey to preside over a John Doe proceeding
into the matter.’ (Tr. 793-796, 802). In the meantime,
Vorlob was given a lie detector test and the examiner
found his answers to be truthful. The District Attorney’s
office requested that Harris take a polygraph, but he
refused. (Tr. 190, 598, 974-977).
A John Doe proceeding was presided over by Judge
Harvey on January 30 and 31, 1974. Lieutenant Harris
was subpoenaed, but did not appear on advice of counsel.
(Tr. 594-596). At the conclusion of the hearing, a crim-
-inal complaint was filed charging Lieutenant Harris with
1 John Doe proceedings are authorized by $968.26, Wis. Stats. These
proceedings are conducted by a judge of a court of record who exercises
a judicial function. State v. Washington, 83 Wis. 2d 808, 823, 266
N.W.2d 597 (1978). “The John Doe judge should act with a view
toward issuing a complaint or determining no crime has occurred.” Jd.,
83 Wis.2d at 823-824. The judge has a broad discretion as to the scope
and extent of the proceedings. Id.
5
one felony and two misdemeanors. (Tr. 1043-1044). The
felony count was dismissed in April, 1974, on the ground
that Vorlob was not a credible witness. The misdemeanors
were dismissed in February, 1975, on the ground that
Judge Harvey had not acted as an impartial magistrate
during the John Doe. (Tr. 142-143, 146-147, 804-805,
986-988).
The immediate results of the issuance of the complaint
were extensive publicity, including charges that the John
Doe hearing and resultant criminal charges were racially
inspired and motivated, and a mass meeting in support
of Lieutenant Harris. Related legal proceedings, includ-
ing habeas corpus, a removal petition, and a judicial com-
mission proceeding against Judge Harvey, lasted for sev-
eral years, all involving considerable publicity.
Both Judge Harvey and Lieutenant Harris were con-
troversial figures. Lieutenant Harris was frequently de-
scribed as controversial, outspoken, and tactless. (Tr. 60,
78, 79, 410-413). There appears to have been a mutual
dislike between these two officials, as a result of conflicts
involving their respective official duties. (Tr. 61, 62,
101-102, 110-111, 118-119). Judge Harvey, a white, was
accused of privately using racially derogatory terms about
Lieutenant Harris, a black. (Tr. 49-51, 96, 101-102, 104).
Judge Harvey denied these charges. (Tr. 286-288) . These
accusations were the only evidence, with the possible ex-
ception of the John Doe proceedings, that tended to show
Judge Harvey’s racial animus against Harris. Lieutenant
Harris was accused of publicly using racially derogatory
terms about the Judge, as well as publicly calling him a
queer. (Tr. 84, 118-119, 124-126, 285-286).
In August, 1974, the results of an independent investi-
gation unrelated to the Vorlob affair were made public
6
in the media. Commencing in 1973, Judge Harvey had
become concerned about the manner in which traffic
charges were being dismissed or reduced in his Court by
two white police officers and Lieutenant Harris and had
complained to the Chief of Police. (Tr. 66, 67, 255, 256,
1085-1089). Judge Harvey instituted a system for con-
trol of dismissal or reduction of charges in his court to
require documentation of reasons as well as signatures
of the appropriate police officer or prosecutor. However,
some dismissals still “slipped by” when substitute judges
were presiding in Judge Harvey’s Court. (Tr. 296, 297, |
1086, 1087). Although Judge Harvey had the ultimate
responsibility for approving dismissals, he had to rely
upon the trustworthiness of the police officers because of
the large caseload of his court.” (Tr. 1171). Finally, in
August, 1974, a local newspaper reported the contents of a
letter from Judge Harvey to Police Chief Donald Dodge,
which outlined two instances of alleged police miscon-
duct involving two white officers and Lieutenant Harris.
Further public and private correspondence regarding po-
lice corruption and ticket fixing continued for several
months. (Tr. 255-266). During this time, Judge Harvey
learned that Lieutenant Harris had a role in the dismissal
of at least 15 traffic tickets in Judge Harvey’s court in-
volving members of Harris’ family. This was called to
the attention of the Chief of Police, but was not made
public (Tr. 272-279, 1089-1094; Exh. 22, 24, 25). The
bad feeling between Judge Harvey and Harris increased
as a result of the traffic ticket situation. (Tr. 76, 77, 101,
102, 110, 111, 391-393).
In November, 1977, a new Chief of Police gave Harris
a five day suspension for refusing to obey a lawful order.
Following this suspension, Harris resigned. No claim is
2In 1974, Judge Harvey’s Court handled 16,000 cases, 60% traffic
and 40% misdemeanor. (Tr. 1101).
7
asserted that Judge Harvey had anything to do with either
the suspension or the resignation. (Tr. 714-723, 740, 939-
947, 951-952).
Harris commenced this action pursuant to §1983 against
Judge Harvey and District Attorney Gerald Clickner on
October 26, 1975, seeking money damages and equitable
relief arising out of Judge Harvey’s private and public
statements concerning the Vorlob John Doe and the al-
leged ticket fixing. The District Attorney was dismissed
from the action on August 5, 1976, on the ground that no
violation of a federally protected right had been charged
against him. On June 30, 1977, the District Court granted
partial summary judgment to Judge Harvey dismissing
the claim for injunctive relief and the due process claim.
The District Court dismissed the due process claim on the
ground that under Paul v. Davis, 424 U.S. 693 (1976),
Harris’ claim that his job had become “unsatisfying” and
“totally unbearable” did not sufficiently show a depriva*
tion of a liberty interest. The Court, however, refused to
dismiss the equal-protection claim on the ground that
Paul v. Davis presented no equal-protection issue.
This matter was tried to a jury commencing on Febru-
ary 27, 1978. The District Court found as a matter of law
that Judge Harvey acted under color of law in-that he
wrote letters on official stationery and disseminated press
releases identifying himself as a cou.ty judge. (App. 25,
26) .2 The District Court also held, as a matter of law, that
8The press release was prepared by the District Attorney’s office
following the filing of the complaint against Harris arising out of the
Vorlob incident. Judge Harvey was given a copy of the release and was
asked to use it if requested for information. When contacted by a local
radio station, Judge Harvey read a portion of the press release for re-
cording, which portion identified only the charges and statute numbers
involved. Judge Harvey was also asked whether Harris had been asked
to testify and had refused, and Harvey answered “yes”. (Tr. 135-138,
308, 317, 799-801, 984, 1042-1043, 1046-1048; Exh. 2).
8
these acts were not judicial acts and were undertaken in
the absence of all jurisdiction. (App. 27).
Over petitioner’s objection, the District Court instruc-
ted the jury that it could consider evidence of events oc-
curring while Judge Harvey was conducting his duties
as a judge for purposes of determining his state of mind
or motive for his other actions. (Tr. 1314). The jury
found that Judge Harvey had acted with racial motiva-
tion. With respect to Harris’ injuries, petitioner does
not know what the jury found since five questions were
presented to the jury in the alternative, and the jury an-
swered “yes”. The jury awarded $60,000.00 in compensa-
tory damages, and also found that petitioner’s acts were
malicious and awarded $200,000.00 in punitive damages.
(Tr. 1342-1343).
The District Court denied motions after verdict in a
decision dated June 26, 1978. The Court of Appeals in a
decision dated August 20, 1979, affirmed in all respects.
REASONS FOR GRANTING THE WRIT
I.
The Court of Appeals approved instructions permit-
ting the jury to consider the judicial acts of Judge Harvey
in order te determine his state of mind or motive for tak-
ing other actions with respect to respondent. Petitioner
believes that this holding is in direct conflict with this
Court’s recent decision in United States v. Helstoski, —-
U.S. —; 99 S. Ct. 2432 (1979), and conflicts, in principle,
with Bradley v. Fisher, 80 U.S. 335 (1872), and kindred
decisions of this Court. Further, the holdings below that,
as a matter of law, Judge Harvey acted both in a non-
judicial capacity in the absence of all jurisdiction and at
9
the same time acted under color of state law, conflicts in
principle with Bradley v. Fisher and numerous decisions
of this Court commencing with the Civil Rights Cases,
109 U.S. 3 (1883).
It is undisputed that Judge Harvey enjoyed judicial
immunity in conducting the John Doe proceedings and
issuing the criminal complaint. The District Court’s in-
struction specifically permitted the jury to consider evi-
dence of events occurring “while Judge Harvey was con-
ducting his duties as a Judge” for purposes of determin-
ing his “state of mind or motive for taking the other ac-
tions against the defendant, which are the subject of this
lawsuit.” (Tr. 1314). The Court of Appeals approved
this instruction with an off-hand citation to Rule 404(b),
Federal Rules of Evidence. (App. 12).
There is no rationale for applying Federal Rule of
Evidence 404(b), which is based upon the policy that “a
man ought not be convicted of doing a specific bad act
because he is a bad fellow generally,”* to the doctrine of
judicial immunity which is based upon “a general prin-
ciple of the highest importance to the proper administra-
tion of justice,” and which is designed “not for the pro-
tection or benefit of a malicious or corrupt judge, but for
the benefit of the public, whose interest it is that the
judges should be at liberty to exercise their function with
independence and without fear of the consequences.’”®
Although this Court has not specifically considered
this state of mind issue in the context of judicial im-
munity, it has recently rejected the holding of the Court
* United States v. Fierson, 419 F.2d 1020, 1022 (7th Cir., 1969).
5 Bradley v. Fisher, 80 U.S. at 347.
6 Pierson v. Ray, 386 U.S. at 554 (quoting prior decision).
10
of Appeals in the analogous context of the Speech or De-
ri Clause. United States v. Helstoski, 99 S. Ct. at 2439,
440.
This Court, in Pierson v. Ray, 386 U.S. 547, 554, 555
(1967), relied upon a legislative immunity decision, Ten-
ney v. Brandhove, 341 U.S. 367 (1951), in holding that
judicial immunity survived the enactment of §1983. This
Court has frequently recognized the common antecedents,
purposes, and scope of judicial, legisiative, and Speech or
Debate Clause immunities. See, e.g., Barr v. Matteo, 360
U.S. 564, 569-572 (1959). The Court of Appeals ignored
the holding in United States v. Helstoski that the immuni-
ty cannot be breached by permitting the jury to consider
immune acts to show state of mind or motive for other
acts.
The holding below, permitting judicial inquiry into
the judicial acts and state of mind of a sitting judge, con-
flicts with principles of judicial immunity frequently em-
phasized by this Court. For example, Bradley v. Fisher,
supra, states:
N or can this exemption of the judges from civil lia-
bility be affected by the motives with which their
judicial acts are performed. The purity of their mo-
tives cannot in this way be the subject of judicial in-
quiry. 80 U.S. at 347.
This ban against consideration of a judge’s state of
mind has been frequently expressed. See, Yaselli v. Goff,
12 F.2d 396 (2nd Cir. 1926), affirmed 275 U.S. 503
(1927); United States v. Morgan, 313 U.S. 409, 422
(1941). This ban is necessary to prevent what happened
here: Permitting the second judge or jury to second-guess
the propriety of or motivation for what the first judge did.
The Court of Appeals endorsed the District Court’s
holding that, as a matter of law, Judge Harvey acted in
11
the absence of all jurisdiction and was not performing
judicial functions but that at the same time he acted under
color of state law. (App. 10, 12). The Court of Appeals
specifically held that the out-of-court acts of Judge Har-
vey “were undertaken in the ‘absence of all jurisdiction,’ ”
were not “judicial” acts, and were not part of his duties.’
(App. 10-12).
The Court of Appeals and District Court based their
holding that Judge Harvey acted under color of state
law upon the “misuse of power” or “pretense of law”
theories first enunciated in United States v. Classic, 313
U.S. 299, 326 (1941). However, the lower courts failed
to observe that this line of authorities is based upon an
officer’s performance of official duties — the misuse of
a power authorized by the State.
Thus, in Screws v. U: ‘ed States, 325 U.S. 91, 110
(1945), this Court was careful to point out that with
respect to the election officials in Classic and the police
officers in Screws: “In each officers of the State were
performing official duties; in each the power which they
were authorized to exercise was misused.” The issue in
Williams v. United States, 341 U.S. 97, 98 (1951), was
“whether a special police officer who in his official ca-
pacity” coerces a confession is subject to prosecution
under 18 U.S.C. §242. When this Court applied the
Classic definition to §1983 actions, it was careful to state
that in each of the §242 cases, the acts complained of
were committed by officers in the performance of their
duties. Monroe v. Pape, 365 U.S. 167, 172, 183, 184
(1961).
TIt is interesting to note that the Court of Appeals also upheld the
$200,000.00 punitive damages award by adopting the District Court’s
holding that Judge Harvey engaged in “ ‘a serious abuse of judicial
power ” (App. 19).
12
Whatever the situation with respect to election officials
or police officers who, in the performance of official
duties, overstep their authority, the application of these
principles to a judge, who, in the language of the Court
of Appeals, is not performing his official duties, is not
performing a judicial function, and has acted in the
clear absence of all jurisdiction, is clearly erroneous. If
Judge Harvey was acting in the performance of his
duties as a judge, albeit unlawfully, and thus under
color of law, he was immune. If, as the Court of Ap-
peals held, he was not performing judicial duties, he was
not acting under color of law.
This is clear from the language in the state action and
judicial immunity cases. Screws v. United States, 325
U.S. at 111, states:
We are not dealing here with a case where an officer
not authorized to act nevertheless takes action.
Here the state officers were authorized to make an
arrest and to take such steps as were necessary to
make the arrest effective. They acted without au-
thority only in the sense that they used excessive
force in making the arrest effective. It is clear that
under ‘color’ of law means under ‘pretense’ of law.
Thus, acts of officers in the ambit of their personal
pursuits are plainly excluded. Acts of officers who
undertake to perform their official duties are in-
cluded whether they hew to the line of their au-
thority or overstep it. (Emphasis added).
The emphasized language is reminiscent of the distinc-
tion between acts done in “excess of jurisdiction” and
those done in the “clear absence of all jurisdiction.”
Bradley v. Fisher, 80 U.S. at 351. This Court recently
reaffirmed the rule that a judge does not lose immunity
for malicious acts done “in excess of his authority.”
Stump v. Sparkman, 435 U.S. 349, 356 (1978).
13
Even if Judge Harvey had acted under color of law
for purposes of §1983, even though performing non-
judicial acts beyond any pale of jurisdiction, how could
he have acted for the state so as to come within the pro-
hibitions of the equal protection clause, whose central
purpose is the prevention of official conduct which is
racially discriminatory?*®
Individuals who “slander the good name of a fellow
citizen” are “amenable to the laws of the State where
the wrongful acts are committed,” rather than to the
prohibitions of the Fourteenth Amendment Civil Rights
Cases, 109 U.S. 3, 17 (1883).
II.
This Court should grant the petition to settle important
questions involving the scope of judicial immunity and
of §1983 which affect the vital interests of the public
and of every judge in this nation.
The decision below permits a jury to inquire into the
judicial acts and state of mind of a sitting judge. In
this case, the instruction inevitably led both to a finding
of “racial motivation” and, thus, liability under §1983
and the imposition of $60,000.00 in compensatory dam-
ages, and to a finding of malice and, thus, imposition of
$200,000.00 in punitive damages.’ It would be naive to
assume that this significant gap in the immunity doctrine
8 Washington v. Davis, 426 U.S. 229, 239 (1976).
® The Court of Appeals was obviously troubled by the punitive dam-
age award and sua sponte suggested that the trial judge consider lower-
ing the amount.
14
will not be exploited in present or future damage suits
against heretofore immune officials.”°
In Stump v. Sparkman, supra, Justice Stewart noted
in dissent:
The only question before us in this case is the scope
of judicial immunity. Flow the absence of a “ju-
dicial act” might affect the issue of whether Judge
Stump was acting “under color of” state law within
the meaning of 42 U.S.C. §1983 [42 U.S.C.S. §1983],
or the issue of whether his act was that of the State
within the meaning of the Fourteenth Amendment
that need not, therefore be pursued here. 435 U.S.
at 369 n. 6.
The Court of Appeals not only answered that subtle
question but held that the answer was so clear so as to
justify the District Court’s refusal to submit the immunity
or color of law questions to the jury.
10 Damage suits against judges are becoming an increasingly signifi--
cant problem in Wisconsin and nationally. See Brief Amicus Curiae
of the Voluntary Association of the Trial Judges of Wisconsin. In
addition, there has been an epidemic of lawsuits against judges and other
state officials sponsored by extremist political groups brought for the
sole purpose of harrassment. See The National Law Journal, Nov. 19,
1979, at p. 1, col. 1.
The potentially devastating effect of such an abrogation of the im-
munity doctrine is well-illustrated by the jury summation in this case.
By frequent reference to the way Judge Harvey conducted the John
Doe proceeding and his issuance of the criminal complaints against
Lieutenant Harris, respondent’s counsel exhorted the jury to “set the
standards” for the conduct of Wisconsin judges in general and Harvey
in particular and to punish Harvey for failure to abide by these stan-
dards. (Tr. 1167, 1235-1236). Referring to the punitive damages ques-
tion, counsel argued: “Folks, you are the ones who are going to set the
standards in the State of Wisconsin . . . for the way judges can treat
human beings” and “I am going to ask you to put in the figure of one
million dollars ($1,000,000.00) to let the judges of this state know that
you don’t engage in the type of conduct that Richard Harvey engaged
_ in against Sylvester Harris.” (Tr. 1235-1236).
15
The Court of Appeals distinguished the case at bar
from Paul v Davis, supra, on the basis that “[t]hat case
presented no equal protection issue.” (App. 13). Yet,
lower courts have consistently held that the right to be
free from defamatory or racially derogatory statements
is not a federally protected right, including a right pro-
tected by the equal protection clause.”
Moreover, the public policy arguments noted by this
Court in Paul apply with equal force to defamation-like
actions brought under the equal protection clause. Paul,
supra, at 698. In enacting 42 U.S.C. §1983, Congress
did not extend:
. a right to be free of injury wherever the State
may be characterized as a tortfeasor... [S]uch a
reading would make the Fourteenth Amendment a
font of tort law to be superimposed upon whatever
systems may already be administered by the States.
Paul, supra at 701.
See also Ingraham v. Wright, 430 U.S. 651, 701, 702
(1977) (Stevens, J. dissenting), citing Bonner v. Cough-
lin, 517 F.2d 1311, 1318-1320 (7th Cir. 1975), modified
en banc, 545 F.2d 565 (1976), cert. denied 435 U.S. 932
(1978).
The Court of Appeals also held that Judge Harvey
was not entitled to any First Amendment privilege for
his out-of-court comments upon and criticism of the of-
ficial conduct of respondent police lieutenant, with the
observation that “plaintiff’s claim was not for defamation
but for an intentional deprivation of equal protection
of the laws.” (App. 14). Whether labelling a defamation
11See El-Em Band of Pomo Indians v. 49th Dist. Agricultural
Fair Assoc., 359 F.Supp. 1044 (N.D. Cal. 1973); Johnson v. Hackett,
284 F.Supp. 933 (E.D. Penn. 1968) ; Smith v. Klecker, 554 F.2d 848
(8th Cir. 1977).
16
claim as a §1983 action abrogates well-established First
Amendment protections has not been clearly decided
by this Court.”
Both Judge Harvey and Lieutenant Harris were pub-
lic officials and Harvey’s statement related to matters
of great public concern: Court administration and al-
leged police misconduct. Judge Harvey was facing a
contest for re-election in 1975. There was no evidence
that Harvey’s statements were false, much less made with
actual malice. See, New York Times Co. v. Sullivan,
376 U.S. 254, 279, 280 (1964).
Moreover, the decision below conflicts in principle
with Smith v. Klecker, supra. Although the Eighth Cir-
cuit relied primarily on Paul v. Davis, supra, in affirm-
ing the judgment of the trial court which dismissed the
complaint, the Court also noted that the defendants
would be immune from liability under New York Times,
supra.
Finally, question 2 of the Special Verdict, in which
the jury was asked whether respondent was injured in
any of five enumerated respects, was fatally duplicitous,
thus requiring a new trial."* Where a Special Verdict
contains several questions disjunctively put, and the jury
answers “‘yes”’, it is impossible to determine what the jury
12 This court has stated that §1983 must be read against the back-
ground of tort liability (Monroe v. Pape, 365 U.S. at 187), including
common law defenses to conduct charged, Pierson v. Ray, 386 U.S. at
556, 557; and that §1983 must be read “in harmony with general
principles of tort immunities and defenses rather than in derogation of
them.” Imbler v. Pachtman, 424 U.S. 409, 418 (1976). .
18 In an Order dated November 5, 1979, the Court of Appeals sub-
stantially modified that portion of its decision dealing with the form
of the Special Verdict.
17
has found. See Vilasak v. Gifford, 248 Wis. 328, 333, 334,
21 N.W. 2d 648 (1946) ; Skidmore v. Baltimore & Ohio
R. Co., 167 F.2d 54, 66 (2nd Cir. 1948), cert. dented 335
U.S. 816 (1948).
CONCLUSION
The decision of the Court of Appeals has created
uncertainty in an area of the law thought to have been
resolved by the clear reaffirmation of century-old princi-
ples by this Court in Stump v. Sparkman. Unless these
important questions are settled by this Court, all con-
scientious judges will labor under this uncertainty to the
ultimate detriment of the public in whose interest the
doctrine of judicial immuntiy has evolved.
Respectfully submitted,
REX CAPWELL
524 Main Street
P.O. Box 247
Racine, Wisconsin 53401
(414) 637-1266
JOHN SUNDQUIST
222 East Mason Street
Milwaukee, Wisconsin 53202
(414) 271-3400
Counsel for Petitioner
Richard G. Harvey, Jr.
January 29, 1980
APPENDIX
App. 1
Opinion by , :dge Cummings
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
August 20, 1979
Before
Hon. THOMAS E. FAIRCHILD, Chief Judge
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. WILLIAM J. CAMPBELL, Senior District Judge*
SYLVESTER HARRIS, P
es Appeal from the United
Plaintiff-Appellee, States District Court
No. 78-2057 ne for the Eastern District
: 2 of Wisconsin.
RICHARD G. HARVEY, JR., No. 75-C-612
Defendant-Appellant. Myron L. Gordon, Judge.
This cause came on to be heard on the transcript of the
record from the United States District Court for the
Eastern District of Wisconsin, and was argued by counsel.
On consideration whereof, it was ordered and adjudged
by this court that the judgment of the said District Court
in this cause appealed from be, and the same is hereby,
AFFIRMED, with costs, in accordance with the opinion
of this court filed this date.
* Honorable William J. Campbell, Senior Judge of the United States
District Court for the Northern District of Illinois, is sitting by
designation.
App. 3
in the
United States Court of Appeals
Bor the Seventh Circuit
No. 78-2057
SYLVESTER HARRIS,
Plaintiff-A ppellee,
Vv.
RICHARD G. HARVEY, JR.,
Defendant-A ppellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 75-C-612—Myron G. Gordon, Judge.
ARGUED JUNE 7, 1979—DECIDED AUGUST 20, 1979
Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit
Judge, and CAMPBELL, Senior District Judge.* ~
CUMMINGS, Circuit Judge. This action was brought
under the Civil Rights Act (42 U.S.C. § 1983) by a
former Racine, Wisconsin, police lieutenant against a
Racine County, Wisconsin, judge! and against Gerald
Clickner, Racine County District Attorney. Plaintiff
claimed that defendants’ actions deprived him of
* Honorable William J. Campbell, Senior —— of the
United States District Court, for the Northern District of
Illinois, is sitting by designation.
| Defendant Harvey was then a Racine County judge but
became a Circuit Judge of Racine County through a 1977
change in Wisconsin’s Judicial system.
4
App. 4
2 No. 78-2057
Fourteenth Amendment due process and equal protec-
tion of the laws. We are setting out the allegations of the
complaint in some detail (and in the same order as the
leader) because the jury found the key allegations suf-
iciently proved.?
Plaintiff alleged that on January 8, 1974, Dale Vorlob,
a paroled felon, was charged with felonious battery for
attacking plaintiff with a pistol. On January 11, 1974,
Vorlob told District Attorney Clickner that on January
10 plaintiff pistol-whipped Vorlob and threatened him
with bodily harm if Vorlob testified against Harris at
Vorlob’s battery trial. Vorlob was convicted in a jury
trial on March 27, 1974.
According to the complaint, Clickner communicated
Vorlob’s statements to Judge Harvey who urged
Clickner to have a complaint sworn out against plaintiff,
and on January 13, Clickner contacted the Racine Chief
of Police to obtain help in the investigation of Vorlob’s
charges against plaintiff. However, after an internal in-
vestigation the Racine Police Department found Vorlob’s
charges baseless and therefore initiated no disciplinary
proceeding against plaintiff. Nevertheless, on January
23, Clickner, “acting in his official capacity under color
of law,” maliciously authorized a petition to Judge
Harvey for a secret John Doe investigation of the plain-
tiff pursuant to Wisconsin law. See Wis. Stat. § 968.26.
Plaintiff alleged that prior to January 9, 1974, Judge
Harvey had told Racine Assistant Chief of Police Hage-
pian that he was going to get that “black bastard,” the
plaintiff. On numerous occasions prior to January 21,
2 For sake of brevity we will not summarize the copious
evidence as to defendant’s racial motivation. Since it was
overwhelming, defendant does not even contend otherwise in
his reply brief and only includes the point in the last section
of his principal brief oe the trial court’s supposedly
erroneous evidentiary rulings. Insufficiency of the evidence
was not argued orally.
3 A John Doe hearing is a procedure authorized by Wiscon-
sin law in which a ju Be hears testimony on whether a crime
has been committed. If he finds there is probable cause to
charge the accused, he issues an arrest warrant.
App. 5
No. 78-2057 3
Judge Harvey “under color of law and beyond his
jurisdiction” maliciously stated to many people that the
plaintiff received preferential treatment and favors
from the Racine Police Department because he was
black.
On or before January 9, Judge Harvey supposedly
“maliciously made racial remarks which were intended
to reflect upon associates, friends and attorneys of
Harris in an effort to have them disassociate themselves
from Plaintiff Harris.”
Commencing at 7:30 p.m. on January 29, Judge
Harvey presided over the John Doe proceeding where
assistant district attorneys authorized by Clicener
“under color of law maliciously presented secret
testimony against Plaintiff Harris.” Plaintiff charged
that during that proceeding, Judge Harvey “acted
within his jurisdiction as county pa il under color of
law,” maliciously threatening witnesses with prosecution
— perjury because they would not incriminate plain-
iff.
On January 30, Judge Harvey allegedly informed a
newspaper reporter that he was conducting a John Doe
hearing at which the plaintiff Vorlob swore that Harris
beat and threatened him, and Harvey added that plain-
tiff would be charged with criminal violations.
On January 31, Vorlob signed three secret complaints
against plaintiff, and Judge Harvey, “acting in his of-
ficial capacity as judge under color of law,” maliciously
and without probable cause issued an arrest warrant for
plaintiff for allegedly violating Wisconsin Statutes
§§ 940.20 [misdemeanor: battery], 941.20 [misdemeanor:
aiming and pointing firearm] and 943.30 [felony:
threatening a witness]. On the same date Judge Harvey
read the warrants for the arrest of plaintiff over a radio
station as well as a press release prepared by defendant
Clickner, and maliciously informed the press that plain-
tiff refused to testify at the John Doe proceeding in-
volving Vorlob’s charges against Harris.
The complaint also charges that on February 4, Judge
Harvey maliciously stated at plaintiff’s initial court
App. 6
4 — No. 78-2057
appearance that»the other Racine County judges wished
to be disqualified from trying plaintiff. On the same
date defendant Harvey called for the dismissal of plain-
tiff from his police department job and attempted to
have the Chief of Police suspend or fire him. On the next
day Judge Harvey allegedly maliciously stated that
laintiff should be forced to take a lie detector test or be
ired on the untrue ground that Vorlob had passed such
a test.
Before plaintiffs trial on any of the criminal com-
plaints, commencing on February 4, Judge Harvey in
public and in the public media commented on the merits
of the Vorlob-related criminal charges against plaintiff
and publicly called him “a fixer, a briber, and a
sycophant.”
Supposedly Judge Harvey on March 11 maliciously
submitted an affidavit in a legal proceeding making
racial and derogatory remarks about plaintiff.‘ Both
defendants allegedly met with officials of the Wisconsin
Attorney General’s office and threatened to accuse plain-
tiff of bribery, ticket-fixing, and other illegal activities
in the public press unless the Attorney General would
“do something about Harvey.”
On February 4, plaintiff was suspended with pay by
the Racine Police Department “after being pressured by
Harvey,” and on February 5 Judge Harvey maliciously
accused the Chief of Police of engaging in the cover-up
because plaintiff “was not ordered to take a lie detector
test and because he was not suspended without pay.”
On April 8, Judge Harvey publicly accused plaintiff of
being on a paid vacation and termed his defense of the
criminal charges against him to be “nonsense.” On
August 8, Judge Harvey maliciously accused plaintiff of
unlawful conduct and publicly wrote that plaintiff was
engaging in criminal conduct.
On August 15, Judge Harvey wrote the City Attorney
that the police department should take disciplinary ac-
4 Summary judgment was subsequently granted to defen-
dant Harvey with respect to this charge contained in:
paragraph 30 of the complaint. See 436 F.Supp. at 151.
App. 7
No. 78-2057 5)
tion against plaintiff or else Judge Harvey would com-
mence criminal proceedings against him. On September
6, Judge Harvey wrote the City Attorney and accused
him of whitewashing plaintiff’s “documented” violation
of Wisconsin Statute § 946.12(1) [misconduct in office].
On November 22, Vorlob told plaintiff and various
Racine officials that he did not know who beat him on
January 10 and had so told defendant Clickner.
On February 11, 1975, the two misdemeanor com-
plaints against Harris were dismissed by another judge
“because of the manner in which Harvey conducted the
John Doe.”®
On February 12, 1975, Judge Harvey wrote a
derogatory letter to the judge who had dismissed the
misdemeanor charges against the plaintiff and caused
the letter to be read by the other Racine County judges.
On February 2, 1974 [sic 1975], defendants commenc-
ed another secret John Doe [ticket-fixing] investigation
of plaintiff and others, and Judge Harvey on numerous
occasions made racial remarks about plaintiff to get him
off the police force and arranged for the search of
records of the police department and the court system in
order to make a list of all cases against anyone named
Harris in the past ten years.
On July 8, 1975, Judge Harvey wrote a letter to the
Chief of Police accusing plaintiff of destroying police
records and stating “that the Harris family appears to
be immune from prosecution” and further indicating
that he would release the information to the Racine
Journal-Times.
As a result of the foregoing actions plaintiff alleged he
was deprived of due process and equal protection of law
under the Fourteenth Amendment. He sought injunctive
relief, $250,000 in compensatory damages, $1,000,000 in
punitive damages, and attorneys’ fees.
On August 5, 1976, Judge Gordon dismissed the action
against the District Attorney of Racine County because
5 The felony charge had been dismissed on May 31, 1974, by
still another judge for lack of probable cause.
App. 8
6 No. 78-2057
no violation of a federally protected or constitutional
right was charged against him.® At the same time Judge
Gordon denied Judge Harvey’s motion for dismissal
because a violation of Harris’ Fourteenth Amendment
right to equal protection of the laws was adequately
alleged with respect to Judge Harvey and because his
acts were allegedly racially motivated and committed
outside of his jurisdiction. He also held that the com-
plaint did properly allege that the offending acts were
rformed under color of state law. 419 F.Supp. 30. On
Jane 30, 1977, Judge Gordon granted summary judg-
ment for defendant as to the plaintiff’s claim for an in-
junction on the grounds that the prospect of future
criminal proceedings against Harris was too remote to
present a case or controversy and that plaintiff had an
adequate remedy at law. Holding that under Paul v.
Davis, supra, plaintiff's claim that his job had become
“unsatisfying” and “totally unbearable” did not suf-
ficiently show a deprivation of a liberty interest, Judge
Gordon dismissed the plaintiff's due process claim.
However, the court denied defendant summary judg-
ment with respect to plaintiff's equal protection claim
because plaintiff’s allegations that his loss of credit, in-
jury to reputation, and deprivation of opportunities for
advancement were inflicted through racially dis-
criminatory treatment were sufficient to state an equal
rotection claim and the question of motivation was one
or the jury. Finally, the district court granted summary
judgment to Judge Harvey as to the allegation in
paragraph 30 of the Complaint that on March 11 he had
maliciously executed an affidavit in a legal proceeding
and in the affidavit made racial and derogatory remarks
about plaintiff. The reason for holding paragraph 30 to
be insufficient was because “the le proceeding in
which the affidavit was submit was intimately
related to matters within the jurisdiction of the defen-
6 Apparently it was not alleged that Clickner acted out of
racial animus. Therefore only the due process claim remained
against him and the district court held that under Paul v.
Davis, 424 U.S. 693, the a of the complaint did not
amount to a deprivation of due process.
App. 9
No. 78-2057 7
dant’s court.” 436 F.Supp. 143, 151.7 The only claim
remaining for the jury was whether the defendant had
through non-judicial acts motivated by racial animosity
inflicted injury—including loss of employment oppor-
tunity, injury to reputation and emotional distress—on
the plaintiff.
The jury trial commenced on February 27, 1978. Dur-
ing the trial Judge Gordon ruled as a matter of law that
defendant acted under color of law and in the absence of
all jurisdiction (App. 18). On March 8 the jury returned
a special verdict that Judge Harvey’s actions concerning
the plaintiff were racially motivated, that plaintiff was
injured by such racially motivated acts with respect to
his reputation: in the community, reputation and work-
ing ability within the police department, and oppor-
tunities for advancement within that department. The
jury also found that Judge Harvey’s racially motivated
acts had caused the plaintiff humiliation, embarrass-
ment and mental distress and interfered with his con-
tinued employment. The jury set compensatory damages
at $60,000. It also found that Judge Harvey’s actions
were done maliciously, wantonly or oppressively and
therefore assessed $200,000 punitive damages against
him. In a lengthy and persuasive opinion the district
judge refused to disturb the verdict (App. 26-38) and
later awarded plaintiff attorneys’ fees in the amount of
$7,500 (App. 39) in lieu of the $39,120 claimed (App. 38).
We affirm.
7 The judge also noted that only equitable relief was sought
on the basis of allegations that defendant conducted judicial
proceedings maliciously and unfairly. Although the doctrine
of judicial immunity does not bar injunctive relief, summary
judgment had already been granted for the defendant on the
equitable claims. Plaintiff's only claim to damages relating to
the conduct of judicial proceedings was based on the affidavit
executed by Judge Harvey. With the grant of summary judg.
ment for the defendant on that issue, no claim involving
judicial proceedings remained to be considered by the jury.
App. 10
8 No. 78-2057
Neither Judicial Nor Prosecutorial Immunity
Protects the Acts for
Which Defendant Was Held Liable.
In support of reversal, defendant’s principal argument
is that he is immune from any liability to plaintiff for
damages arising from his acts on the ground that he
enjoyed judicial and prosecutorial immunity. As to the
former, the trial judge properly applied the rule of
Stump v. Sparkman, 435 U.S. 349, in holding that the
acts perpetrated outside of Judge Harvey’s courtroom
and not then a part of his judicial functions were under-
taken in the “absence of all jurisdiction.” These acts in-
volved the defendant’s repeated communications to the
press and to city officials over the course of more than a
year. These communications were critical of plaintiff
and called for action to be taken against him. Many of
them were made while plaintiff was awaiting trial on
the criminal charges stemming from the John Doe
proceeding. Such acts were not judicial because they
were not functions normally performed by a judge, and
were not “to the expectations of the parties” in that as to
these acts the parties did not deal with him in his
judicial capacity. 435 U.S. at 362. Accordingly, the trial
judge instructed the jury that although damages could
not be assessed against Judge Harvey for conducting the
John Doe proceedings, he could be held liable for his
extra-judicial acts. Since no liability was imposed where
Judge Harvey enjoyed judicial immunity, no error was
committed on that score.
As to prosecutorial immunity, defendant relies on
Imbler v. Pachtman, 424 U.S. 409. Since that case only
immunizes a prosecutor when he is “initiating a prosecu-
tion and * * * presenting the State’s case” (424 U.S. at
431), it is of no avail to this defendant. His only
prosecutorial function was in connection with his con-
duct of the John Doe proceedings and the jury had been
instructed not to assess any damages against him on
that account. Therefore, his prosecutorial immunity was
properly observed.
App. Il
No. 78-2057 9
Defense of Official Immunity Fazrls.
In the district court and here defendant also contend-
ed that he was absolutely immune for his comments as a
government official under Barr v. Matteo, 360 U.S. 564.
That case dealt with a federal official and presumably
does not apply to state officials, even in a libel situation.
Outside of judicial immunity, a state officer’s immunity
is qualitied. Scheuer v. Rhodes, 416 U.S. 232. In any
event defendant seeks to extend judicial immunity to his
extrajudicial acts by contending that they ~were
undertaken—as were the acts complained of in Barr—to
explain and justify official proceedings. Defendant’s ac-
tions were assertedly undertaken to preserve the integri-
ty and independence of his court. All of the offending
communications are claimed to have been either in
defense of allegations by plaintiff's supporters that the
John Doe proceedings were improperly handled or
related to Judge Harvey’s attempt properly to ad-
minister his court by stopping the fixing of traffic
tickets. The only authority cited for this defense is
Skolnick v. Campbell, 398 F.2d 23 (7th Cir. 1968).
However Skolnick was not a Section 1983 case, and we
held that the plaintiff had failed to state a cause of ac-
tion under Illinois libel law. We also commented that on
the theory that Judge Campbell’s answer to public
criticism was merely “an appropriate response for the
protection of the reputation of the court, [he] may in any
event have enjoyed absolute immunity from civil liabili-
ty under Barr v. Matteo.” (398 F.2d 23, 25-26, emphasis
supplied.) Clearly the Skolnick case is not precedent for
extending judicial immunity to non-judicial acts. Even if
it were, it would not protect this defendant because the
public and private campaign of vilification alleged in
the complaint and credited by the jury went well beyond
an appropriate response to protect the integrity and
reputation of the court. Moreover, the Barr rule has only
applied to acts of high executive officers and with
respect to actions in their line of duty. 360 U.S. at 573,
575. Since we agree with the district court that Judge
Harvey’s attacks on plaintiff were not part of his duties,
Barr would not afford him a defense even if it did apply
to judges. It is undisputed that defendant did not offer a
App. 12
10 No. 78-2057
qualified immunity defense below, but in any event such
a defense would not withstand the jury’s malice find-
ing. Rosenblatt v. Baer, 383 U.S. 75, 84.
John Doe Proceeding Evidence Was Admissible.
Next defendant contends that the trial judge
erroneously received in evidence Judge Harvey’s actions
in the John Doe ee However, Judge Gordon
carefully instructed the jury that it could consider such
evidence only insofar as it bore on defendant’s state of
mind or motive in his efforts to have the plaintiff remov-
ed from his job and to ruin his reputation because of
racial prejudice (Tr. 1313-1314). The doctrine of judicial
immunity does not require the exclusion of judicial acts
from evidence but merely protects a judge from liability
for those acts. Under Rule 404(b) of the Federal Rules of
Evidence, the defendant’s judicial acts were clearly ‘ad-
missible as proof of his racially discriminatory motive.
Defendant Was Acting Under Color of Law.
The district court instructed the jury that he had
found as a matter of law that the defendant had acted
under color of law (Tr. 1323). Defendant contends in his
reply brief that if he acted as a private citizen the state
action necessary for a Section 1983 claim is lacking,
whereas if he acted in his judicial capacity he is immune
from civil liability (Reply Br. 7). We have already dis-
cussed our agreement with the district court that im-
munity does not apply because Judge Harvey was not
performing judicial functions. We also agree that none-
theless Judge Harvey was acting under color of law. by
using the power and prestige of his state office to
damage the plaintiff.2 As the district court said,
“I was convinced at trial and remain convinced as
a matter of law that the defendant acted under the
8 Defendant’s counsel conceded at oral argument that a
judge could act under color of law and yet in the absence of
all jurisdiction. Counsel for the Voluntary Association of the
Trial Judges of Wisconsin, appearing as amicus curiae,
conceded that Judge Harvey was acting under color of law.
App. 13
No. 78-2057 11
pretense of his standing as a county judge. No
reasonable juror, in my opinion, could find
otherwise. Letters were written on official
stationery. Press releases were disseminated by the
defendant, identified as a county judge, through the
media. The defendant brought to bear his influence
as a county judge on those to whom he wrote and
spoke. When the defendant Judge Harvey urged the
discharge of Lieutenant Harris with racial over-
tones in out-of-court conversations with Captain
Pavkovich [sic] and Assistant Chief Hagopian, he
was acting as a functionary of the state * * *.”
(App. 30.)
This Claim Is Cognizable under the Equal
Protection Clause of the Fourteenth Amendment.
Defendant claims that this suit is for defamation and
therefore is not cognizable under 42 U.S.C. § 1983,
citing Paul v. Davis, 424 U.S. 693. However, Paul was
basically a libel suit because a police department flyer
had mistakenly included Davis’ name and photograph in
a list of shoplifters. That case presented no equal protec-
tion issue. The Supreme Court held that because Davis’
claim did not amount to a deprivation of liberty or
property it was not cognizable under the due process
clause of the Fourteenth Amendment and therefore did
not state a cause of action under Section 1983. In con- |
trast, the present case concerns a racially motivated
campaign to discredit and damage the plaintiff,
resulting in serious injury to him. We avrree with the
district court that such an intentional tort inspired by
racial animus and perpetrated under color of state law
constitutes a denial of equal protection. Defendant has
produced no case holding that such an action is not
cognizable under Section 1983. Here the defendant was
acting under color of law, and the jury found that his
racially motivated actions had injured plaintiff. Such a
claim is clearly within the purview of Section 1983.
Inada v, Sullivan, 523 F.2d 485, 489 (7th Cir. 1975);
Chase v. McMasters, 573 F.2d 1011, 1019 n.8, 1019-1020
(8th Cir. 1978); Sherman v. Yakahi, 549 F.2d 1287, 1290
App. 14
12 | No. 78-2057
(9th Cir. 1977); Fioyd v. Trice, 490 F.2d 1154 (8th Cir.
1974); Hawkins v. Town of Shaw, Miss., 461 F.2d 1171
(5th Cir. 1972); Dombrowski v. Dowling, 459 F.2d 190,
196 (7th Cir. 1972); Jordan v. Hutcheson, 323 F.2d 597,
601 (4th Cir. 1963); Rafferty v. Prince George’s County,
423 F.Supp. 1045, 1050, 1052 (D. Md. 1976).
The Trial Court Did Not Err by Not
Instructing the Jury That Truth and
Lack of Actual Malice Are Defenses.
The defendant asserts on appeal that his public
statements criticizing plaintiff’s performance as a police
officer were fair comment and protected by the First
Amendment. Therefore, defendant claims that under
New York Times v. Sullivan, 376 U.S. 254, he was en-
titled to an instruction that if the jury found that the
charges he leveled at the plaintiff were true or that
defendant lacked actual malice (in the sense of inten-
tionally falsifying or recklessly disregarding the truth),
he should not be held liable. However, as the district
court pointed out, plaintiff’s claim was not for defama-
tion but for an intentional deprivation of equal protec-
tion of the laws (App. 26-27).9 The fact that this depriva-
tion was accomplished in part through speech does not
allow the defendant automatically to invoke the protec-
tion of the First Amendment. The jury’s findings that
defendant’s actions were not only racially motivated but
were of an action-intended-to-injure quality establish
that they were neither fair comment nor the type of
speech that is protected by the First Amendment.
Moreover, it is undisputed that defendant did not
attempt to establish truth or lack of actual malice as a
defense, requested no instruction on those defenses, and
raised the First Amendment issue for the first time in
9 We realize that the types of injuries claimed in this case
may often result from ordinary defamation. However, the
ongoing campaign to have defendant relieved of his job, which
was motivated by racial animus and carried out under color
of law, distinguishes this case from ordinary defamation
cases.
en eee
App. 15
No. 78-2057 13
his motion for judgment notwithstanding the verdict. In
these circumstances the absense of the instruction would
not be error even if it would otherwise have been ap-
propriate.
Form of Verdict Was Not So Duplicitous
As to Require Reversal.
Question No. 1 of the special verdict submitted to the
jury asked whether defendant’s actions concerning
plaintiff were racially motivated, and the jury respond-
ed affirmatively. Defendant objected at trial and still ob-
ee to the form of Question No. 2 which provided as
ollows:
“Question No. 2: If you answered question no. 1
‘Yes,’ then answer this question: Was the plaintiff,
Sylvester Harris, injured in any of the following
respects by any racially motivated acts by the
defendant, Richard Harvey, Jr.:
(a) the plaintiff's reputation in the community;
(b) the plaintiff’s reputation and working ability
within the police department;
(c) the plaintiff's opportunities for advancement
within the police department;
(d) humiliation, embarrassment and mental dis-
tress;
(e) continued employment.
ANSWER: Yes
(Yes or No)”
Defendant asserts that Question No. 2 is duplicitous
because the jury was requested to answer whether plain-
tiff was injured “in any of the following respects.” The
evidence was sufficient for the jury to conclude that
plaintiff was injured in each of the five categories, but
since each category represents a compensable injury it is
immaterial whether the jurors agreed on the same
category. While Question No. 2 could have been framed
more artfully, it does not require us to set aside the
judgment on the ground that it was fatally duplicitous.
App. 16
14 No. 78-2057
The Trial Court’s Evidentiary Rulings
Also Do Not Require Reversal.
Defendant first objects to the exclusion of various
newspaper articles he attempted to introduce into
evidence. The defense theory was that these articles
would show that the defendant had been criticized for
his handling of the Harris case and would therefore help
to establish that his motive in speaking out against
Harris was to ‘oe the reputation of his court rather
than to injure Harris out of racial animus. Many of the
excluded articles do reveal public criticism leveled at
defendant, but they also repeat at length the criminal
charges then pending against plaintiff. Judge Gordon
refused to receive them because their “damage aspects
outweighed their possible injury to proprieties
notwithstanding their hearsay aspects * * * [and be-
cause they are] almost entirely of a hearsay nature
and without any saving grace sufficient to outweigh the
lack of probative value to them” (Tr. 1098). This ruling
was entirely in accord with Rule 403 of the Federal
Rules of Evidence which permits a trial judge to ex-
clude evidence whose probative value is merely
cumulative or is substantially outweighed by the danger
of unfair prejudice, confusion of the issues and the like.
Defendant has not shown that Judge Gordon abused his
discretion under that rule, especially because Judge
Harvey was allowed to testify about the newspaper ar-
ticles. In his brief, defense counsel claims that Judge
Harvey was particularly prejudiced because plaintiff's
counsel in valuatial referred to an excluded newspaper
article. The truth of the matter is that counsel for plain-
tiff was only rebutting defense counsel’s erroneous clos-
ing statement to the jury that the January 30, 1974, edi-
tion of the Racine Journal-Times was in evidence.
The trial court is also criticized for having aborted
defense counsel’s attempt to question Captain Albro of
the Racine Police Department concerning plaintiff's
training, experience, and promotion. However, plaintiff's
employment record, advancement and _ allegedly
favorable treatment in the Police Department were dis-
cussed in the testimony of Captain Povkovich and Police
ee
App. 17
No. 78-2057 15
Chief Hagopian and in the findings of the Equal Rights
Division’s hearing agent.'° Since the supposed favoritism
received by Harris was already covered, it was un-
necessary for Judge Gordon to receive further evidence
on this subject. As the court stated, the subject of
favorable treatment Harris may have received in his
employment was “in evidence previously * * * [and]-it’s
duplicative” (Tr. 404). Accordingly, Rule 403 of the
Federal Rules of Evidence supported the exclusion of
the additional Albro evidence.
Defendant insists that the district court should have
permitted him to depose Harris as to his November 7,
1977, resignation from the Police Department which
was announced to the press on November 8. The district
court had ordered discovery cut off as of November 17,
1977. At a status conference on that date defendant’s
trial counsel incorrectly told Judge Gordon that he was
“sure” that he had previously taken the deposition of
plaintiff. Reacting predictably to counsel’s erroneous
statement that he had already deposed the plaintiff,
Judge Gordon refused to permit a “second kick at the
cat”, adding:
“The allegations in the complaint, which I hold
before me, demonstrate a massive expression of
damage that he sustained: Humiliation, distress,
embarrassment, loss of credit, loss of good name,
hatred of his fellow officers, threatened his life, ex-
penditure of money, deprivation of opportunities for
advancement. It seems to me that the adding of the
word ‘resignation’ to that list would not so
significantly change the claim this Plaintiff has
made to justify a second examination.” (Nov. 17,
1977, Tr. 8.)
On appeal, defendant has not shown that it was
necessary to depose plaintiff on this subject prior to
trial, particularly since the complaint and affidavits had
already informed defendant that Judge Harvey’s con-
duct had made defendant’s job intolerable. 436 F.Supp.
10 The Equal Rights Division is part of Wisconsin’s Depart-
ment of Industry, Labor and Human Relations.
App. 18
16 . No. 78-2057
at 149. Even defendant’s counsel denigrated the necessi-
ty for taking such a deposition by telling Judge Gordon
it was no “big deal” (Nov. 17, 1977, Tr. 7)! Finally,
defendant asserts that the trial judge should have per-
mitted the jury to consider an administrative complaint
filed by Harris with the Equal Rights Division of the
Wisconsin Department of Industry, Labor and Human
Relations against the Racine Chief of Police and the
Racine Police Department alleging employment dis-
crimination.. Defendant asserts that the dismissal of this
complaint should have been considered by the jury
because it reflected adversely on plaintiff's credibility.
The decision (App. 59-70) and complaint were received
in evidence as defendant’s Exhibits 73 and 74 even
though the trial judge did not consider them relevant
with respect to defendant’s improper conduct. However
he did permit the jury to consider them as to any effect
they might have upon plaintiff's damages. We agree that
neither the complaint before the Wisconsin Equal
Rights Division nor the decision thereon related to the
merits of plaintiffs complaint against Judge Harvey. In-
deed, Judge Gordon was perhaps over-liberal in receiv-
ing the exhibits even with respect to damages and in
sending them to the jury room. Since defendant has not
shown why these exhibits would destroy plaintiff's
credibility, Rule 401 of the Federal Rules of Evidence
relied upon by the defendant is inapplicable."
Punitive Damages.
In his principal and reply briefs defendant dces not
attack the amount of the $60,000 compensatory damages
assessed by the jury nor even the $200,000 punitive
damages so assessed. While this Court might consider
the punitive damages awarded to be unduly high, the
district: court explained in its post-trial opinion that the
defendant had not shown that his financial cir-
cumstances required a lesser amount of punitive
damages and that the court did not find the punitive
1 Rule 401 defines relevancy. It should be noted that defen-
dant does not rely upon Rule 608 with respect to attacking a
witness’ credibility #0 that we need not consider that rule.
App. 19
No. 78-2057 17
damages award to be excessive or shocking to the
judicial conscience since there had been “a serious abuse
of judicial power” by defendant (App. 35-36). In view of
the jury’s finding that defendant had acted “maliciously,
wantonly or oppressively,”!2 we may not disturb its
award of punitive damages. However, the trial judge
should consider reducing the $200,000 award if defen-
dant can show financial hardship.
Judgment affirmed.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
12 This finding was in response to defendant’s nopones in-
struction No. 8 (R. 27) taken from 2 Devitt and Blackmar,
Federal Jury Practice and Instructions (2d ed. 1970) § 87.15
(formerly § 85.11) (Tr. 1144). The definition of malice given by
the court (Tr. 1328) was also suggested by defendant R. 27 at
p. 17).
USCA 4412—Midwest Law Printing Co., Inc., Chicago—s-20-79—2300
App. 20
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
November |, 1979
Before
Hon. THOMAS E. FAIRCHILD, Chief Judge
Hon. LUTHER M. SWYGERT, Circuit Judge
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. WILBUR F. PELL, JR., Circuit Judge
Hon. ROBERT A. SPRECHER, Circuit Judge
Hon. PHILIP W. TONE, Circuit Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. WILLIAM J. CAMPBELL, Senior District Judge*
SYLVESTER HARRIS, :
i ie Appeal from the United
Plaintiff-Appellee, States District Court
No. 78-2057 on. for the Eastern District
of Wisconsin.
RICHARD G. HARVEY, JR., No. 75-C-612
Defendant-Appellant. Myron G. Gordon, Judge.
ORDER
On consideration of the petition for rehearing and sug-
gestion for rehearing en banc filed in the above-entitled
cause by defendant-appellant Richard G. Harvey, Jr., a
vote of the active members of the Court was requested,
and a majority of the active members of the Court have
voted to deny a rehearing en banc. All of the judges on
the original panel have voted to deny the petition for re-
hearing. Accordingly, ;
IT IS ORDERED that the aforesaid petition for re-
hearing be, and the same is hereby, DENIED.
Judges Pell, Tone, Bauer and Cudahy voted to grant
the petition for rehearing en banc.
* The Honorable William J. Campbell, Senior District judge of the
Northern District of Illinois, is sitting by designation.
App. 21
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
November 5, 1979
Before
Hon. THOMAS E. FAIRCHILD, Chief Judge
Hon. WALTER J. CUMMINGS, Circuit Judge
Hon. WILLIAM J. CAMPBELL, Senior District Judge*
SYLVESTER HARRIS, Appeal from the United
Plaintiff-Appellee, States District Court
for the Eastern District
No. 78-2057 vs. of Wisconsin.
RICHARD G. HARVEY, JR., No. 75-C-612
: Defendant-Appellant. Myron G. Gordon, Judge.
ORDER
On consideration of the petition for rehearing which
was denied on November |, the panel ordered the fol-
lowing change to be made in the slip opinion: Page 13,
eighth from last line, delete the sentence beginning with
“The evidence” and continuing through to “same cate-
- gory” in the third and fourth from last lines of that page.
Substitute the following:
“He argues that it could have been understood to
permit some jurors to find one type of injury and
reject others while other jurors might find a differ-
ent type of injury and reject the first. We find noth-
ing in the form of the verdict or in the instructions
suggesting that reading. Instead, the trial judge spe-
cifically instructed the jury to reach a unanimous
verdict, telling them ‘in order to return a verdict it
is necessary that each juror agree thereto. Your ver-
dict must be unanimous. All six of you who will be
jurors in this case must agree.’ ”
* The Honorable William J. Campbell, Senior District Judge of the
Northern District of Illinois, is sitting by designation.
App. 22
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SYLVESTER HARRIS,
Plaintiff,
v. No. 75-C-612
RICHARD G. HARVEY, JR.,
Defendant.
DECISION and ORDER
This action is before me on the plaintiff's motion for
an award of attorney’s fees and the defendant’s motions
for judgment notwithstanding the verdict and alternative
motions for a new trial or for an amendment or alteration
of judgment. The plaintiff’s motion will be granted. The
defendant’s motions will be denied.
MOTION FOR JUDGMENT
NOTWITHSTANDING
THE VERDICT
The defendant advances several grounds in support of
his motion for judgment notwithstanding the verdict.
They will be considered seriatim.
The defendant argues for the first time in this case that
his acts with reference to the plaintiff were an exercise
of the First Amendment right to freedom of speech. The
defendant relies on familiar principles of First Amend-
ment law for the propositions that the defendant, as a pub-
lic official, does not lose his First Amendment rights and
that the plaintiff, Mr. Harris, if he be found to be a pub-
lic official or public figure, must meet a higher burden
of proof to recover on a defamation theory.
App. 23
In my opinion, the body of First Amendment law re-
lied upon by the defendant is not controlling in this ac-
tion. The theory upon which the plaintiff proceeded to
trial did not include a claim for defamation. The plain-
tiff’s action, narrowed by the decision and order partially
granting the defendant’s motion for partial summary
judgment, sought damages for a violation of his right to
equal protection of the law as guaranteed by the Four-
teenth Amendment. The letters which were written by
the defendant to various Racine officials and the press
releases he prepared and disseminated admittedly involve
speech, but that does not end the matter. As the Supreme
Court recently stated:
“[I]t has never been deemed an abridgment of free-
dom of speech or press to make a course of conduct
illegal merely because the conduct was in part ini-
tiated, evidenced or carried out by means of lan-
guage, either spoken, written, or printed.” Ohralik v.
Ohio State Bar Association, 46 U.S.L.W. 4511, 4514
(May 30, 1978), guoting Giboney v. Empire Storage
& Ice Co., 333 U.S. 490, 502 (1949).
The complaint alleges and the proof evidently per-
suaded the jury that the defendant intentionally acted
with racial motivation to deprive the plaintiff of equal
protection of the laws, thereby inflicting employment,
reputational and emotional injuries on the plaintiff. Thus,
this case does not involve the mere expression of the de-
fendant’s racial philosophy. Cf. Collin v. Smith, case nos.
78-1381 and 78-1385 (7th Cir. May 22, 1978). What is
involved here is a state official’s racially-inspired cam-
paign to injure the plaintiff, thereby depriving him of
the equal protection of the laws. Such conduct goes well
beyond the area the First Amendment is designed to pro-
tect.
App. 24
The defendant next urges that the plaintiff was not de-
prived of any “right, privilege, or immunity” secured by
federal law within the meaning of 42 U.S.C. § 1983. To
support this contention, the defendant characterizes this
action as one for racial defamation and argues that one’s
embarrassment or humiliation because of racial slurs does
not support an action under § 1983.
The same argument was made and rejected on the de-
fendant’s motion for partial summary judgment. Harris
v. Harvey, 436 F. Supp. 143, 149-150 (E.D. Wis. 1977).
This action does not merely seek damages for racial name-
calling. The plaintiff’s injuries were alleged to include a
loss of employment opportunities, reputational and emo-
tional injuries. Such injuries, inflicted through the ra-
cially-motivated acts of a person acting under color of
state law, set forth an equal protection claim that is re-
dressable through an action under § 1983. Furthermore,
the defendant’s erroneous characterization of this action
as a defamation action requires the rejection of his argu-
ment that he is protected by an absolute privilege for his
actions and distinguishes Barr v. Matteo, 360 U.S. 564
(1959), upon which he relies.
The defendant next argues that the evidence does not
support the jury’s finding that he acted with racial moti-
vation. The defendant’s subjective intent was an issue pe-
culiarly appropriate for resolution by the jury. In my
judgment, the evidence, especially the testimony of Cap-
tain Pavkovich and Assistant Chief Hagopian was suffi-
cient to justify a jury finding that the defendant acted
against the plaintiff with racial motivation.
The defendant also contends that the evidence does not
sustain a finding that he acted under color of law or that
he acted in the absence of all jurisdiction. I found to the
contrary as a matter of law and so instructed the jury.
App. 25
The “under color of law” element in a § 1983 action
against a judge presents a precarious proof problem for
the plaintiff. On the one hand, he must prove that the
judge acted under the pretense or authority of state law,
Screws v. United States, 325 U.S. 91, 111 (1944) ; on the
other hand, the plaintiff must prove that the judge’s acts
were not judicial acts since the judge is absolutely im-
mune from liability for his judicial acts. Stump v. Spark-
man, 46 U.S.L.W. 4253 (March 28, 1978). Indeed, the
overlapping nature of the under color of law element of
§ 1983 and the judicial act inquiry for immunity purposes
presents a similar problem for the defendant. In this case,
the defendant is simultaneously arguing that while taking
the actions complained of, he was engaged in a personal
pursuit unrelated to his judicial duties (so as to avoid the
color of law element of § 1983) and that he was acting
to protect the sanctity and dignity of his courtroom (so as
to avoid a finding that he acted in the absence of all
jurisdiction).
The court of appeals for the seventh- circuit recently
considered a case in which questions of state action and
immunity were both present. The technique for address-
ing these two questions in the same case is made clear by
the following statement appearing at page 5 of the slip
_ opinion in Robinson v. Bergstrom, .... F.2d .... (No. 76-
1620, decided June 13, 1978) :
“There appears to be no question that the require-
ment of ‘state action’ in a section 1983 claim is an
essential jurisdictional predicate. Cannon v. Univ. of
Chicago, 559 F.2d 1063 (7th Cir. 1976); Braden v.
Univ. of Pittsburgh, 552 F.2d 948 (3rd Cir. 1977)
(en banc). Accordingly, where state action is found
lacking, the section 1983 complaint is properly dis-
missed for lack of subject matter jurisdiction. Can-
non, supra. Alternatively a question of whether a de-
App. 26
fendant is immune, either qualifiedly or absolutely, is
not a jurisdictional issue. Rather, immunity is an af-
firmative defense which may defeat the section 1983
claim once that subject matter jurisdiction has been
established. See, e.g., Stump v. Sparkman, ... U.S.
...., U.S.L.W. 4253 (March 28, 1978) ; Larsen v.
Gibson, 267 F.2d 386 (9th Cir. 1959).
“Tt is elementary that jurisdiction is a threshold
issue, whether or not raised by a party, which must be
satisfied prior to the merits. Haley v. Childers, 314
F.2d 610 (8th Cir. 1963).
“Tt is therefore obvious that the state action ques-
tion, a requirement for subject matter jurisdiction,
must be weighed prior to a consideration of im-
munity.”
I was convinced at trial and remain convinced as a
matter of law that the defendant acted under the pretense
of his standing as a county judge. No reasonable juror,
in my opinion, could find otherwise. Letters were written
on official stationery. Press releases were disseminated by
the defendant, identified as a county judge, through the
media. The defendant brought to bear his influence as
county judge on those to whom he wrote and spoke. When
the defendant Judge Harvey urged the discharge of Lieu-
tenant Harris with racial overtones in out-of-court con-
versations with Captain Pavkovich and Assistant Chief
_ Hagopian, he was acting as a functionary of the state in
at least as high a degree as the off-duty policeman in
Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977). In my
opinion, Judge Harvey’s conduct easily fits the general
rule stated in Roberts v. Acres, 495 F.2d 57, 59 (7th Cir.
1974), that:
“, . an individual’s conduct is engaged in under
color of law if clothed with the authority of the state
and purporting to act thereunder, whether or not the
conduct complained of was authorized.”
App. 27
It is equally clear that the acts taken by the defendant
were not judicial acts. In Stump v. Sparkman, supra, the
Supreme Court stated :
“The relevant cases demonstrate that the factors de-
termining whether an act by a judge is a ‘judicial’
one relate to the nature of the act itself, t.e., whether
it is a function normally performed by a judge, and
to the expectation of the parties, 1.e., whether they
dealt with the judge in his judicial capacity.” 46 U.S.
L.W. at 4256.
Writing letters to the police chief and to other city offi-
cials to pressure the discharge of a police officer and is-
suing press releases about judicial proceedings are not
acts normally performed by judges. These acts, hostile to
the plaintiff, were perpetrated by Judge Harvey outside
of his courtroom and were not even plausibly a part of his
judicial functions. No reasonable interpretation of the
evidence could be taken which would permit such con-
duct to be regarded as within his judicial capacity.
With respect to the defendant’s acts complained of in
this action, there were no “litigants,” as such, or parties
to an action whatsoever. The defendant correctly argues
that he is immune from liability for conducting the John
Doe proceedings inquiring into allegations of crime com-
mitted by the plaintiff. However, no liability has been
imposed on that basis. I instructed the jury that damages
may not be assessed against the defendant because he con-
ducted the John Doe proceedings.
oo
I therefore reject the defendant’s arguments that the
evidence was insufficient to withdraw the issues of judi-
cial immunity and action under color of law from the
jury.
App. 28
MOTION FOR A NEW TRIAL
In support of his motion for a new trial, the defendant
argues that several evidentiary rulings were in error, that
the form of the verdict and jury charge were were [sic]
erroneous, and that the verdict was against the clear weight
of the evidence. The defendant also seeks a new trial based
on newly discovered evidence.
The defendant argues that several newspaper articles
were erroneously excluded as being hearsay. He claims
that they were not offered to prove the truth of their con-
tent but rather to show their effect upon the defendant’s
state of mind. Prima facie, the newspaper articles are
hearsay. I believe that the limited benefit to have been
derived from admitting the newspaper articles for a re-
stricted purpose was far outweighed by the potential
damage which may have resulted from their receipt into
evidence. Although purportedly offered not to prove the
truth of the matter asserted in the articles, their introduc-
tion would have been confusing to the jurors, thereby jus-
tifying their exclusion. Rule 403, Rules of Evidence. I
believe that the defendant had a fair opportunity to place
his defense theory before the jury. I have reviewed the
defendant’s other claims of erroneous evidentiary rulings
and find none of them persuasive.
The defendant asserts that the form of the verdict sub-
mitted to the jury was erroneous for several reasons. First,
the defendant claims that the verdict failed to inquire
whether the plaintiff was deprived of a right, privilege
or immunity secured by federal law.
The right which the plaintiff claimed to have been de-
prived of was his right to equal protection of the laws un-
der the Fourteenth Amendment. The verdict asked the
jury to answer the question whether the actions of the de-
App. 29
fendant toward the plaintiff were racially motivated.
Since the issue whether the actions of the defendant were
under color of law had already been resolved against the
defendant, such determination, coupled with the jury in-
quiry whether the defendant’s acts were racially moti-
vated, adequately placed before the jury the question
whether the defendant deprived the plaintiff of his right
to the equal protection of the laws.
The defendant also urges that the verdict erroneously
failed to inquire of the jury whether the defendant acted
under color of law and whether the defendant acted in the
absence of all jurisdiction. For the reasons expressed
above in connection with the motion for judgment not-
withstanding the verdict, I believe that it was proper to
rule on these matters as a matter of law.
The defendant next argues that the charge to the jury
was erroneous because it failed adequately to define the
term “racial motivation.” No objection on this specific
point was made at trial, and I am not now convinced that
this term required definition. I also reject the defendant’s
argument that his own instruction on racial motivation
should have been given. The defendant’s proposed in-
struction, which I rejected, reads as follows:
“The fact that words you may find to have been said
by the defendant might be considered racially derog-
atory, is not sufficient without corroborating evi-
dence to show that they reflect a state of mind of the
defendant toward the plaintiff, Sylvester Harris.”
I disagree with the central proposition of the defendant’s
proposed instruction. I believe that the use of the racially
derogatory terms used by the defendant may properly
form a basis for the jury’s belief that he acted with a ra-
cially motivated state of mind.
App. 30
The defendant also argues that it was error to instruct
the jury that it could consider the acts and statements
made by the defendant at the John Doe proceedings pre-
sided over-by him for the limited purpose of determining
whether he acted with racial motivation. It is argued that
because the defendant is immune from liability for these
acts and statements, the jury could not even consider such
matters. The doctrine of judicial immunity protects‘
judges from liability for the acts and statements made in
the course of judicial proceedings, but the doctrine does
not preclude their introduction in evidence and their con-
sideration by the jury for the purpose of proving the
judge’s possible motivation on other occasions.
The defendant also argues that several of the instruc-
tions he proposed were erroneously refused. The instruc-
tions in question were excluded either because they set
forth legal positions which were rejected for reasons ex-
pressed in this decision, at trial, or on the defendant’s par-
tial summary judgment motions, or because the matters
they addressed were determined as a matter of law. I
therefore reject the defendant’s contention that there was
error in the charge given to the jury.
The defendant next argues that the jury verdict is con-
trary to the weight of the evidence on several issues. The
parties’ evidence on these points was conflicting and coun-
sel argued their respective positions at length to the jury.
My review of the evidence and the jury’s verdict does not
leave me with the “firm conviction that a mistake has
been committed.” 11 C. Wright and A. Miller, Federal
Practice and Procedure: Civil §2806, p. 49.
The jury awarded $60,000. in compensatory damages;
found the defendant to have acted maliciously, wantonly,
or oppressively; and awarded $200,000 in punitive dam-
App. 31
ages to the plaintiff. The defendant claims that the evi-
dence was insufficient to support any of these findings
and seeks a new trial or an order for a new trial with a
remittitur option to the plaintiff. |
I believe that the evidence did justify an award of sub-
stantial compensatory damages, a finding that the defen-
dant acted with malice, and an award of punitive dam-
ages. I do not agree with the defendant that the com-
pensatory damage award is excessive.
The evidence demonstrated that the plaintiff’s chances
for further advances in employment were significantly
diminished ; that the plaintiff’s skin broke out and that he
could not sleep; and that his reputation professionally
and socially was impaired. No loss of income occurred
since the plaintiff’s suspension from the police force was
with pay. Such injuries are clearly compensable. Carey v.
Piphus, 46 U.S.L.W. 4224 (March 21, 1978). The assess-
ment of damages for the plaintiff’s injuries which were
occasioned by the defendant’s conduct is peculiarly with-
in the jury’s scope. The evidence impressed me with the
severity of Lieutenant Harris’ actual damages. I believe
that he proved significant injuries which were not con-
fined to mere mental anguish. In my opinion, the jury’s
finding as to compensable damages is entirely fair. I can
add without hesitation that my judicial conscience is not
shocked by the jury’s award of $60,000 for the serious im-
pairments described by the plaintiff.
Also, I am unable to find that the punitive damages
award is excessive or shocks the judicial conscience. The
defendant argues that the punitive damage award is ex-
cessive because the defendant was not shown to be a weal-
thy man. However, the burden is on the defendant to
show his financial circumstances justify a lesser amount
App. 32
of punitive damages. Zarcone v. Perry, 572 F.2d 52, 56
(2d Cir. 1978). As the latter case explains, a serious abuse
of official power by a judge may warrant a substantial
punitive damages award; “...and when a jury has dealt
with it severely, as it should, we will not draw fine lines
to restrain its dispensation of justice.” Id. at 57. |
The defendant’s motion for a new trial is also bottomed
on newly discovered evidence. The evidence in question is
a statement made to the media after the trial was con-
cluded. Since this evidence was not in existence at the
time of trial, it cannot be relied upon to support a motion
for a new trial. Ryan v. United States Lines Co., 303 F.2d
430 (2d Cir. 1962).
Finally, the defendant seeks an amendment or altera-
tion of judgment pursuant to Rule 59, Federal Rules of
Civil Procedure. He claims that no punitive damages may
be awarded and that compensatory damages may be
awarded in an amount no greater than $25,000 because
of Wis. Stat. § 895.43. The latter statute prescribes the
procedures and limitations applicable to recovery of dam-
ages for torts committed by various state agencies, offi-
cials, and employees. The statute limits damages for torts
committed by officials acting in their official capacities
to $25,000 and prohibits the recovery altogether of puni-
tive damages.
Assuming that the defendant comes within the provi-
sions of § 895.43 as a matter of state law, I do not believe
that the statute can be invoked to limit the recovery of the
plaintiff in this federal civil rights action. Although both
state and federal law may be utilized in determining the
damages to be awarded in a federal civil rights action,
Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974), the
federal district court is to invoke the rule which best
App. 33
serves the policy expressed by the civil rights laws. Id.
Since the cardinal principle for determining damage
awards in civil rights cases is the principle of compensa-
tion, Carey v. Piphus, 46 U.S.L.W. 4224 (March 21,
1978), any state rule of damages which purports to limit
the amount of recovery for injuries that are in fact com-
pensable must give way. Moreover, federal law permits
the recovery of punitive damages in a § 1983 action. Mo-
rales v. Haines, 486 F.2d 880, 882 (7th Cir. 1973). Ac-
cordingly, the defendant’s argument that § 893.45 [sic]
limits the plaintiff’s recovery is without merit.
THE PLAINTIFF’S MOTION FOR AN
AWARD OF ATTORNEY’S FEES
The plaintiff has applied for an award of attorney’s
fees. The defendant opposes such an award arguing that
there is no statutory authority for doing so.
The defendant’s argument is erroneous. Section 1988
of Title 42 of the United States Code provides that the
court may in its discretion allow the prevailing party in
a § 1983 action a reasonable attorney’s fee as part of his
costs. This is so even if the action was commenced, as in
this case, prior to the enactment of the attorney’s fees
award act which amended § 1988 in 1976. Bond v. Stan-
ton, 555 F.2d 172 (7th Cir. 1977). Ordinarily, a prevail-
ing plaintiff should receive an award of attorney’s fees.
Christiansburg Garment Co. v. Equal Employment Op-
portunity Commission, 46 U.S.L.W. 4105 (January 23,
1978). In my judgment, the plaintiff is entitled to such an
award in this case.
The plaintiff's counsel has supplied an affidavit stat-
ing that he expended 625 hours in the preparation for
trial and the trial of this case and that his current billing
App. 34
rate is $60 per hour. No breakdown of the hours spent
has been supplied, however, and the affidavit states that
no records were even kept after September, 1977. I am
unable to make a determination on the basis of this affi-
davit of what an appropriate award would be in this case.
The plaintiff’s counsel is requested to prepare a more de-
tailed application and affidavit explaining the hours
spent and the billing rates he used throughout the history
of this case. Counsel should take into consideration the
factors set forth in Waters v. Wisconsin Steel Works of
International Harvester Co., 502 F.2d 1309, 1322 (7th
Cir. 1974).
Therefore, IT IS ORDERED that the defendant’s
motions for judgment notwithstanding the verdict, for a
new trial and for alteration or amendment of the judg-
ment be and hereby are denied.
IT IS ALSO ORDERED that the plaintiff's motion
for an award of attorney’s fees is granted in an amount
to be determined hereafter in accordance with the in-
structions contained in this decision.
Dated at Milwaukee, Wisconsin, this 26 day of June,
1978.
/s/ Myron L. Gordon
U.S. District Judge
App. 35
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SYLVESTER HARRIS,
Plaintiff, ,
Vv. No. 75-C-612
RICHARD G. HARVEY, JR.,
Defendant.
DECISION and ORDER
The defendant Harvey has moved for partial summary
judgment dismissing several portions of the plaintiff's ac-
tion. Based on the record before me, including the plead-
ings, affidavits, exhibits, and briefs of the parties, I be-
lieve that this motion should be granted in part and de-
nied in part.
This is an action grounded on 28 U.S.C. §§ 1343, 1331,
and 42 U.S.C. §1983, in which the plaintiff seeks dam-
ages and equitable relief for deprivations under color of
law of rights secured by the fourteenth amendment to the
United States Constitution.
The action was brought against Richard Harvey, Jr.,
county judge for Racine County, and Gerald Clickner,
the district attorney for Racine County. The plaintiff is a
lieutenant with the Racine city police department and
heads its community relations department. Mr. Harris is
black and Judge Harvey and Mr. Clickner are white. As
a result of this court’s disposition of prior motions in this
case, the defendant Clickner has been dismissed from this
action. Harris v. Harvey, 419 F. Supp. 30 (E.D. Wis.
1976).
App. 36
The events that gave rise to this action began in Janu-
ary, 1974, when the plaintiff arrested one Dale Vorlob
for attacking him with a pistol. Charges of felonious bat-
tery to a police officer were brought against Vorlob. Ac-
cording to the complaint, Mr. Vorlob informed district
attorney Clickner of an incident which allegedly occurred
shortly after Mr. Vorlob’s arrest in which the plaintiff
pistol whipped Mr. Vorlob and threatened Mr. Vorlob
with bodily harm if he were ic testify at the trial.
The complaint relates that on the petition of Mr.
Clickner, Judge Harvey conducted John Doe proceed-
ings inquiring into Mr. Vorlob’s allegations. As a result
of the John Doe proceedings, felony and: misdemeanor
charges were lodged against the plaintiff. While these
criminal charges were pending, Judge Harvey allegedly
undertook a series of efforts to persuade the Racine police
chief, the police and fire commission, and the city attor-
ney to take disciplinary actions against the plaintiff. It is
also alleged that on numerous occasions the defendant
commented publicly on the merits of the charges against
the plaintiff and that Judge Harvey released or threat-
ened to release information to the press concerning these
charges and other alleged wrongdoing by the plaintiff.
The plaintiff claims that the actions of the defendant
Harvey were malicious and motivated by a racial animus.
In support of the latter claim, the plaintiff has submitted
affidavits of individuals stating that they heard Judge
Harvey refer to the plaintiff in a racially derogatory man-
ner. It is also claimed that a number of Judge Harvey’s
acts were taken beyond his jurisdiction as county judge.
Judge Harvey’s actions have allegedly caused the plain-
tiff various injuries; the plaintiff claims that he has be-
come an object of hatred of his follow [sic] officers; that .
App. 37
his life has been threatened ; that he fears for his personal
safety and the safety of his wife; that he has spent consid-
erable sums for his legal defense; that he has been de-
prived of opportunities for advancement; and that he suf-
fers loss of credit, loss of good name, humiliation, mental
distress and embarrassment.
Lieutenant Harris seeks injunctive relief preventing
Judge Harvey from conducting any further investigation
into the plaintiff's activities. The plaintiff aiso requests
damages for asserted denial of due process and equal pro-
tection of the laws because of the manner in which judi-
cial proceedings were sought against him and for the
reputation and employment-related injuries which he
claims to have suffered.
Judge Harvey does not deny that he conducted the
John Doe proceedings or that he corresponded with vari-
ous Racine officials concerning imposition of discipline
or other sanctions upon the plaintiff. However, the defen-
dant denies making racially derogatory remarks about the
plaintiff and also denies that any of his actions were moti-
vated by racial prejudice, were undertaken maliciously,
or were performed outside his jurisdiction.
The defendant’s present motion seeks partial summary
judgment dismissing several portions of the plaintiff's
action. (1) As to the plaintiff's claim for injunctive relief,
the defendant’s motion is grounded on principles set forth
in Younger v. Harris, 401 U.S. 37 (1971), and O’Shea
v. Littleton, 414 U.S. 488 (1974). (2) Relying on Paul
v. Davis, 424 U.S. 623 (1976), the defendant seeks sum-
mary judgment respecting the plaintiff’s due process claim
for damages for injury to his reputation. (3) The defen-
dant also argues that summary judgment should be
granted dismissing the equal protection aspect of the
App. 38
plaintiff’s action. (4) Finally, the defendant contends that
summary judgment must be granted because of the doc-
trine of judicial immunity.
I. THE CLAIM FOR INJUNCTIVE RELIEF
Paragraph 45 of the amended complaint avers that:
“On information and belief, Defendants Clickner
and Harvey, acting under color of law, both within
and without their jurisdiction, are continuing and
persisting in their course of malicious conduct to in-
timidate, threaten and harrass Plaintiff Harris up to
and including the date of this complaint causing him
immediate and irreparable harm for which there is _
no adequate remedy at law and Defendants will con-
tinue to act both within and without their jurisdic-
tion under color of law unless this Court grants per-
manent injunctive relief.”
In support of the claim for injunctive relief, Lieuten-
ant Harris has submitted several exhibits. The first ex-
hibit, a portion of the transcript from one of the John
Doe proceedings, includes an exchange in which Judge
Harvey persistently warned a witness not to perjure him-
self by denying that he heard a conversation inculpating
the plaintiff. The other exhibits allegedly show that the
defendant continued publicly and privately to attack the
plaintiff up to the time this action was commenced. In
correspondence between the defendant and the Racine
chief of police, Judge Harvey provided information
from the John Doe proceedings and from other sources
that the plaintiff had acted improperly on other occasions
and urging that the police department conduct an internal
investigation of Lieutenant Harris so as to avoid a “cov-
erup.”
The defendant advances two grounds in support of its
motion for partial summary judgment dismissing the
App. 39
plaintiff's claim for injunctive relief: (1) The plaintiff’s
claim presents no actual case or controversy as required
by Article III of the Constitution; (2) Even if the case
or controversy requirement is met, the plaintiff has not
stated an adequate basis for equitable relief.
In support of the first of these contentions, the defen-
dant stresses that no judicial proceedings are presently
pending against Lieutenant Harris and that the plaintiff
has failed to allege “sufficient facts to demonstrate that
he is in any jeopardy of suffering irreparable injury if the
as yet uncommenced state proceedings are not now en-
joined.” The defendant in this regard relies on O’Shea v.
Littleton, 414 U.S. 488 (1974).
In O’Shea, a county magistrate and judge, among
others, were sued under 42 U.S.C. §§ 1981, 1982, 1983,
and 1985 for allegedly engaging in practices in the ad-
ministration of a state criminal justice system which de-
prived the plaintiffs of rights secured in part by the four-
teenth amendment. The plaintiffs sought injunctive relief
preventing the defendants’ imposing various procedural
burdens upon nonwhite persons that were not imposed
on white persons.
The Supreme Court, holding that the plaintiff’s com-
plaint failed to satisfy the jurisdictional case or contro-
versy requirement in Article III, reasoned as follows:
“Apparently, the proposition is that if respondents
proceed to violate an unchallenged law and if they
are charged, held to answer, and tried in any pro-
ceedings before petitioners, they will be subjected to
the discriminatory practices that petitioners are al-
leged to have followed. But it seems to us that at-
tempting to anticipate whether and when these re-
spondents will be charged with crime and will be
made to appear before either petitioner takes us into
App. 40
the area of speculation and conjecture. See Younger
v. Harris, [401 U.S. 37, at 41-42 (1971) ].” 414 US.
at 497.
Acknowledging that as a result of the plaintiff's conduct
tensions were high, the Court was “nonetheless unable to
conclude that the case-or-controversy requirement is satis-
fied by general assertions or inferences that in the course
of their activities respondents will be prosecuted for vio-
lating valid criminal laws.” O’Shea, supra, at 497. The
Court found that under the circumstances “the threat of
injury from the alleged course of conduct . . . attack[ed ]
is simply too remote to satisfy the case-or-controversy
requirement and permit adjudication by a federal court.”
O’Shea, supra, at 498.
I am convinced that in the instant case as well the pros-
pect of future criminal proceedings against the plaintiff
is,too remote to present a case or controversy as required
by Article III. The complaint and the parties’ affidavits
reveal that all criminal proceedings against the plaintiff
that stemmed from the John Doe have been dismissed and
no other charges have since been lodged against Lieuten-
ant Harris as a result of any proceedings over which the
defendant presided. Moreover, this case does not involve
prosecution of an individual engaging in protest or a
challenge to allegedly unconstitutional laws where the
likelihood of future prosecution may be greater. See e.g.
Steffel v. Thompson, 415 U.S. 452, 459 (1974).
In addition to the absence of an Article III case or
controversy, the plaintiff’s entitlement to equitable relief
is blocked by the availability to him of adequate legal
remedies. As the Supreme Court found with respect to
the state criminal justice system in O’Shea, the Wisconsin
App. 41
criminal justice system provides protections to victims of
discriminatory practices:
“[T Jhere are available state and federal procedures
which could provide relief from the wrongful con-
duct alleged. Open to a victim of the discriminatory
practices asserted under state law are the right to a
substitution of judge or a change of venue, Ill. Rev.
Stat., c. 38, §§ 114-5, 114-6 (1971) [Wis. Stats.
§§ 801.58, 801.46], review on direct appeal or on
postconviction collateral review, and the opportunity
to demonstrate that the conduct of these judicial of-
ficers is so prejudicial to the administration of jus-
tice that available disciplinary proceedings, includ-
ing the possibility of suspension or removal, are war-
ranted. Ill. Const., Art. VI, § 15(e), [Wis. Const.
Art. VII, § 13]. In appropriate circumstances, more-
over, federal habeas relief would undoubtedly be
available.
“Nor-is it true that unless the injunction sought is
available federal law will exercise no deterrent ef-
fect in these circumstances. Judges who would will-
fully discriminate on the ground of race or otherwise
would willfully deprive the citizen of his constitu-
tional rights, as this complaint alleges, must take ac-
count of 18 U.S.C. § 242. (citations omitted).
‘“Whatever may be the case with respect to civil lia-
bility generally, see Pierson v. Ray, 386 U.S. 547
(1967), or civil liability for willful corruption, see
Alzua v. Johnson, 231 U.S. 106, 110-111 (1913);
Bradley v. Fisher, 13 Wall. 335, 347, 350, 354
(1872), we have never held that the performance of
the duties of judicial, legislative, or executive offi-
cers, requires or contemplates the immunization of
otherwise criminal deprivations of constitutional
rights. Cf. Ex parte Virginia, 100 U.S. 339 (1880).
On the contrary, the judicially fashioned doctrine of
official immunity does not reach ‘so far as to immu-
nize criminal conduct proscribed by an Act of Con-
App. 42
gress. ...’ Gravel v. United States, 408 U.S. 606, 627
(1972).” O’Shea, supra, at 502-3. |
While it is true that not all of these protections are
available to relieve the plaintiff from a John Doe investi-
gation, they will be available to the plaintiff in the event
that such an investigation yields criminal charges. In so
opinion, these legal remedies provide the plaintiff wit
adequate protection and, thus, he is not entitled to ge
ble relief. Therefore, partial summary judgment will be
granted as to the plaintiff’s claim for an injunction.
II. DUE PROCESS CLAIM
In my decision on the defendants’ motions to oe
I determined that as to Judge Harvey the complaint a .
quately alleged a violation of the plaintiff's ae
amendment right to equal protection of the laws. I also
decided that the complaint successfully pleaded —
tions that could arguably have been undertaken “in the
absence of all jurisdiction,” so that the defendant 08
vey’s judicial immunity did not foreclose the plainti S
recovery of damages under 42 U.S.C. § 1983. foun :
Ray, 386 U.S. 547 (1967) ; Bradley v. Fisher, 13 ) all.
335, 80 U.S. 335 (1871). Accordingly, the plaintiff S =
tion for both monetary and injunctive relief against i
defendant Harvey survived the motion to omega e
defendant Clickner, however, was dismissed because no
violation of a federally protected constitutional right is
charged against him and dismizsal must follow snene
to Paul v. Davis.” Harris v. Harvey, 419 F. Supp. at 32.
The plaintiff erroneously reads the decision of 69
court and misconceives the role that Paul v. Davis, 42
U.S. 623 (1976), played in the disposition of the motion
to dismiss.
App. 43
Implicit in my conclusion that no claim had been stated
upon which relief could be granted against the defendant
Clickner was my belief that the injuries sustained by the
plaintiff did not rise to the level of a deprivation of life,
liberty, or property within the meaning of the due process
clause of the fourteenth amendment. Paul v. Davis held
that injury to reputation alone, apart from injury to some
more tangible interest such as employment, does not con-
stitute a deprivation of liberty protected by fourteenth
amendment due process. The import of Paul is that a
defamation does not become a deprivation of liberty
merely because the defamer is an individual acting under
color of state law. Thus, a person so defamed is not en-
titled to any due process protections prior to the time that
the alleged defamatory conduct takes place; instead, he
must subsequently resort to state law remedies.
The plaintiff makes no claim of discharge from em-
ployment. In fact, the affidavit and pleadings indicate
that the plaintiff continues to work at his job with the
Racine city police department. During the time that the
plaintiff was suspended from his job, he received full pay.
The basis for the plaintiff’s claim that he has been de-
prived of a liberty interest is that his job has become “un-
satisfying” and “nearly unbearable.”
In a case very similar to the one at bar, it was held that
a policeman’s “temporay suspension with pay is a far cry
from that ‘absolute deprivation’ against which the four-
teenth amendment protects.” Taylor v. N ichols, 499 F.
Supp. 927 (D. Kan. 1976). The court of appeals for this
circuit has recently held in a post-Paul case that an injury
to reputation accompanied by a discharge from employ-
ent infringes a fourteenth amendment liberty interest
even where the discharged employee does not have a
App. 44
property interest in his job. Colaizzi v. Walker, 542 F.2d
969 (7th Cir. 1976). Even the latter interpretation does
not eliminate the necessity of a termination or nonrenewal
of employment under Paul. For this reason, the claim
against the defendant Clickner was dismissed. For the
same reason, that portion of the action against the defen-
dant Harvey, based on an alleged deprivation of the
plaintiff's liberty interest, must also fail. Therefore, the
plaintiff's motion for partial summary judgment dismiss-
ing the plaintiff's due process claim will be granted.
IIJ. EQUAL PROTECTION
The bases for the plaintiff's equal protection claim are
(1) that Judge Harvey, because of his racial bias against
the plaintiff, sought to cause the plaintiff’s firing, suspen-
sion without pay, or disciplinary action by the police
department; and (2) that out of racial motivation the
defendant sought the criminal prosecution of the plaintiff.
The parties have submitted evidentiary materials and
argument concerning the motivation underlying the de-
fendant’s actions against the plaintiff. It is alleged that on
several occasions the defendant made racially derogatory
remarks about the plaintiff and that such remarks were
made “to get Harris off the police force.”
The plaintiff's proof consists primarily of affidavits by
individuals who claim to have heard the defendant make
such racial remarks. The defendant argues that the use
of racially offensive terms does not prove racial motiva-
tion. He claims that his efforts to have charges brought
against Lieutenant Harris and to have employment sanc-
tions imposed were instead motivated by a belief that
Lieutenant Harris had committed crimes.
App. 45
I believe that the defendant’s motion for summary judg-
ment in this respect must be denied. The question wheth-
er a given act was motivated by racial discrimination re-
quires inquiry into the subjective intent of the actor and
therefore is particularly inappropriate for resolution by
summary judgment. See Dombrowski v. Dowling, 459
F.2d 190 (7th Cir. 1972) ; Donovan v. Reinbold, 433 F.2d
738 (9th Cir. 1970). The parties’ affidavits are sufficient
to raise a factual issue as to the motivation underlying
the defendant’s conduct, thereby precluding summary
judgment.
Judge Harvey also contends that the plaintiff has
suffered no injury cognizable under the equal protection
clause. It is argued that because the plaintiff was never
tried and convicted of the crimes charged and was never
discharged from his employment, the case against the
defendant is reduced to one based on racial name-calling.
The defendant proceeds from this reasoning to rely on
cases holding that racial name-calling does not amount to
a denial of equal protection. El-Em Band of Pomo In-
dians v. 49th District Agricultural Fair Association, 359
F. Supp. 1044 (N.D. Cal. 1973); Johnson v. Hackett,
284 F. Supp. 933 (E.D. Pa. 1968).
The defendant erroneously believes that Paul v. ‘Davis,
supra, requires that a deprivation of life, liberty, or prop-
erty be established in all fourteenth amendment cases. In
my opinion, Paul relates to due process and does not con-
trol a claim based upon an alleged denial of equal pro-
tection of the laws. An individual who has suffered in-
juries as a result of unjustified invidious discrimination,
may be able to establish an equal protection violation re-
gardless whether such injuries rise to the level of depri-
vations of life, liberty, or property.
App. 46
The plaintiff has averred several significant injuries
in his complaint, including loss of credit, injury to repu-
tation, and a deprivation of opportunities for advance-
ment in his employment. Such injuries, standing alone,
are insufficient to invoke procedural due process. How-
ever, if they are inflicted, as alleged, through racially
discriminatory treatment, they are sufficient under the
law to support a claim based on a denial of equal protec-
tion of the laws.
Accordingly, the defendant’s motion for summary judg-
ment dismissing the plaintiff’s equal protection claim will
be denied.
IV. JUDICIAL IMMUNITY
Judge Harvey next argues that the doctrine of judicial
immunity shields him from liability for damages for sev-
eral of his acts complained of by the plaintiff. Both par-
ties agree that the immunity is applicable “even where
the judge is accused of acting maliciously and corruptly.
...” Pierson v. Ray, 386 U.S. 547, 554 (1967). The par-
ties also acknowledge that a judge acting “in excess” of
his jurisdiction is still immune and that he may be sued
for damages only when he has acted in the “clear absence
of all jurisdiction over the subject matter. . . .” Bradley
v. Fisher, 13 Wall. 335, 351, 80 U.S. 335 (1871). Spark-
man v. McFarlin, 552 F.2d 172 (7th Cir. 1977) ; Jacob-
son v. Schaefer, 441 F.2d 127, 129 (7th Cir. 1971).
The defendant first argues that summary judgment
should be granted as to the allegations that he maliciously
and unfairly conducted judicial proceedings inquiring
into the plaintiff’s activities. The defendant argues that
these acts were performed within his jurisdiction as coun-
ty judge.
App. 47
The plaintiff has responded that the doctrine of judi-
cial immunity does not bar an action for equitable relief
even if the judicial officer were acting within his juris-
diction. Jacobson v. Schaefer, supra. The plaintiff has
complained about the circumstances attending Judge
Harvey’s judicial proceedings only in support of his
claim for equitable relief. Since I have ruled that the
claim for equitable relief must be dismissed, it is unneces-
sary to address this portion of the defendant’s motion.
However, the defendant has also raised the judicial
immunity defense with respect to certain acts unrelated
to the John Doe proceedings which he conducted con-
cerning the plaintiff.
The plaintiff has alleged that Judge Harvey informed
a newspaper reporter what had transpired at the secret
John Doe proceedings and that charges would be brought
against the plaintiff. On another occasion, the defendant
allegedly held a press conference to reveal the charges
against the plaintiff and the fact that the plaintiff refused
to testify at the John Doe. (complaint, 1s 22-25). While
these two allegations may have been included in the com-
plaint solely to support the now-dismissed due process
claim, a fair reading of the complaint suggests that the
allegations may also relate to the plaintiff's equal pro-
tection claim.
The defendant contends that even if these allegations
were true, these acts fell within his subject matter juris-
diction and that he is immune from liability for damages.
Since the defendant has cited no authority, either legal
or factual, in support of this contention, I decline to alter
my prior determination that the judge may not claim
immunity from suit regarding the allegations in para-
graphs 22 and 25 of the complaint. Therefore, the defen-
App. 48
dant’s motion for summary judgment dismissing the plain-
tiff’s claim insofar as it relies upon the allegations in
paragraphs 22 and 25 will be denied.
Paragraph 30 of the complaint alleges that the defen-
dant, acting beyond his jurisdiction, maliciously executed
an affidavit containing racial and other derogatory re-
marks about the plaintiff and submitted it in a legal pro-
ceeding in which he was neither a party nor an attorney.
In my previous decision, I held that this act, if proved,
could arguably constitute an absence of all jurisdiction.
Harris v. Harvey, 419 F. Supp. 30, 31 (1976).
Based on the present record, I now believe that the
plaintiff is foreclosed from the recovery of damages based
on the allegation in paragraph 30 of the complaint.
The affidavit containing remarks about the plaintiff
was submitted in state court habeas corpus proceedings
challenging the defendant’s actions in the John Doe pro-
ceedings and other matters relating to the administration
of the defendant’s court. The plaintiff’s petition for ha-
beas corpus was grounded on the defendant’s alleged ra-
cial prejudice. It is now apparent that the legal proceeding
in which the affidavit was submitted was intimately re-
lated to matters within the jurisdiction of the defendant’s
court.
The concept of judicial immunity is broad enough to
shield a judge from liability for his efforts to justify in
habeas corpus proceedings the determinations arrived at
in matters over which he had subject matter jurisdiction.
I will therefore grant summary judgment to the defen-
dant as to the allegations contained in paragraph 30 of
the complaint.
ee ee. ney
2
ee
re
a A EE
App. 49
Therefore, IT IS ORDERED that the defendant’s
motion for summary judgment dismissing the plaintiff's
claim for injunctive relief be and hereby is granted.
IT IS ALSO ORDERED that the defendant’s motion
for summary judgment dismissing the plaintiff’s due proc-
ess claim be and hereby is granted.
rr IS FURTHER ORDERED that the defendant’s
motion for summary judgment dismissing the plaintiff's
equal protection claim be and hereby is denied.
IT IS FURTHER ORDERED that the defendant’s
motion for summary judgment on the basis of judicial
immunity be and hereby is granted in part and denied in
part as set forth in this decision.
Dated at Milwaukee, Wisconsin, this 30 day of June,
1977.
/s/ Myron L. Gordon
U.S. District Judge
App. 50
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SYLVESTER HARRIS,
Plaintiff,
v. No. 75-C-612
RICHARD G. HARVEY, JR. and
GERALD CLICKN ER,
Defendants.
DECISION and ORDER
Both defendants have moved to dismiss this action and,
in the event such motion is not granted, the defendant,
Judge Harvey, has moved for a protective order limiting
the area of inquiry at a future deposition hearing.
The action is brought pursuant to 42 U.S.C. § 1983. In
a comprehensive complaint consisting of 47 numbered
paragraphs, the plaintiff alleges that he was deprived of
his constitutional rights by the defendant Harvey, a
county court judge of Racine county, and by the defen-
dant Clickner, the district attorney of Racine county. A
variety of wrongs is attributed to the two defendants, who
are white, against the plaintiff, who is a black Racine
police lieutenant.
The motion to dismiss relies in part on a claim of im-
munity by both the defendants. They also contend that the
acts charged against them were not under color of state
law. In addition, the defendants urge that the plaintiff
was not deprived of any rights protected by the Constitu-
tion of the United States.
With reference to the immunity defense, the law is
clear that a judge and a district attorney, who are acting
App. 51
within their jurisdiction, are exempt from monetary lia-
bility, even when their acts are alleged to be malicious.
Pierson v. Ray, 386 U.S. 547 (1967) ; Jacobson v. Schae-
fer, 441 F.2d 127 (7th Cir. 1971). The immunity afford-
ed to judges has been extended to public prosecutors.
In Imbler v. Patchman, .... U.S. .... (1976), 44 U.S.L.W.
4250 (March 2, 1976), the Court said that “a prosecutor
enjoys absolute immunity from § 1983 suits for damages
when he acts within the scope of his prosecutorial duties.”
(U.S.L.W. p. 4253). Since monetary damages are not
sought in this action from the defendant Clickner, the
Imbler immunity is not really applicable.
The complaint in the instant case expressly alleges
that a number of the acts attributed to the defendants
were committed outside of their jurisdictions. The court
is mindful of the admonition of the court of appeals for
the seventh circuit in Jacobson v. Schaefer, supra, where
at page 129 the court notes that a judge may be liable for
damages only when he has acted “in the clear absence of
all jurisdiction over the subject matter.” The conduct of
Judge Harvey described in complaint paragraphs 22, 25,
27, 28, 29, 30, 31, 37 and 38, if proved, could arguably
constitute an “absence of all jurisdiction.” A fair reading
of the complaint persuades me that upon the present state
of the record, Judge Harvey is not entitled to dismissal
as to the plaintiff’s action for monetary relief.
I find no merit in the defendant’s argument that this
action cannot be brought under § 1983 because of an ab-
sence of a showing that the acts were performed under
color of state law. Fairly construed, I think it is clear
that § 1983 may not be denied to the use of the plaintiff
on this ground.
With reference to the contention that there has been
no deprivation of the plaintiff’s rights which are secured
App. 52
by the United States Constitution, I note that in para-
graphs 15, 16, 17 and 30, of the complaint there are spe-
cific references to racial aspects. Those paragraphs read
as follows:
“15. On information and belief, prior to January
9, 1974, Richard Harvey, Jr. had stated to Racine
Assistant Chief of Police Hagopian, that he was go-
ing to get that ‘black bastard’, Harris.”
“16. On information and belief, on many occa-
sions prior to January 21, 1974, Defendant Harvey,
under color of law but beyond his jurisdiction, mali-
ciously stated to many people that Plaintiff Harris
received preferential treatment from the Racine Po-
lice Department and that Harris received favors be-
cause he was black.”
“17. On information and belief, on or before
January 9, 1974, Defendant Harvey maliciously
made racial remarks which were intended to reflect
upon associates, friends and attorneys of Harris in an
effort to have them disassociate themselves from
Plaintiff Harris.”
“30. On information and belief, on or about
March 11, 1974, Defendant Harvey, acting under
color of law but beyond his jurisdiction as County
Judge, deliberately, maliciously and intentionally
executed an affidavit and submitted the affidavit in
a legal proceeding in which he was neither a party,
nor an attorney and in that affidavit made racial and
derogatory remarks about Harris before Harris had
been tried on any of the criminal complaints issued
by Harvey.”
The racial overtones of the complaint persuade me that
this court has jurisdiction under § 1983, so far as the con-
duct of Judge Harvey is concerned, notwithstanding the
decision in Paul v. Davis, .... U.S. ..... 44 U.S.L.W. 4337
(March 23, 1976). That case made it clear that one who
App. 53
has suffered a defamation has not sustained a deprivation
of a federally protected right.
Paul v. Davis contemplates that one who would sue in
federal court under § 1983 must point to a “specific con-
stitutional guarantee safeguarding the interest he asserts
has been invaded.” (Slip opinion p. 7). In the case at
bar, there are numerous acts attributed to Judge Harvey
which were allegedly racially motivated. They are item-
ized with sufficient clarity so as to foreclose this court
from granting dismissal as to Judge Harvey. A violation
of Mr. Harris’ fourteenth amendment right to equal pro-
tection of the laws has been adequately alleged. It follows,
therefore, that Judge Harvey’s motion to dismiss may not
be granted, and the plaintiff’s action against him, both
as to monetary and injunctive relief, must stand.
As previously noted, damages are not sought from Mr.
Clickner, and, thus, the immunity of a prosecutor does
not insulate him from this action. However, this § 1983
action may not be pursued against Mr. Clickner because
no violation of a federally protected constitutional right
is charged against him and dismissal must follow pursu-
ant to Paul v. Davis. The wrongs attributed by the plain-
tiff to Mr. Clickner do not support a § 1983 action in
federal court.
With reference to the motion for a protective order,
Judge Harvey urges that the plaintiff should be barred
from inquiring into various subject matter areas. I have
examined the contents of this motion and conclude that
the better exercise of the court’s discretion pursuant to
Rule 26(c), Federal Rules of Civil Procedure, is to deny
the defendant’s motion.
App. 54
Therefore, IT IS ORDERED that the motion of the
defendant Harvey for dismissal be and hereby is denied.
IT IS ALSO ORDERED that the motion of the de-
fendant Clickner for dismissal be and hereby is granted.
IT IS FURTHER ORDERED that the motion of
the defendant Harvey for a protective order be and here-
by is denied.
Dated at Milwaukee, Wisconsin, this 5 day of August,
1976.
/s/ Myron L. Gordon
U.S. District Judge
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