# Petition — Harvey v. Harris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1617%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 938 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1617%3A1. Public record. Not legal advice.