Petition for Writ of Certiorari — Fisher v. Krajewski

Supreme Court brief1990

Ask Donna

What actually matters in this document.

Text

‘| JOSEPH F. SPANIOL, UR,

___ ‘CeERK

SS a

IN THE

] SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

LLOYD B. FISHER,

Petitioner,

Vv.

JUDGE JAMES J. KRAJEWSKI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

| GILBERT KING, JR.,* MACARTHUR DRAKE

| Atty. for Petnr. Atty. for Petnr.

1109 Broadway 504 Bdwy., Ste. 506

Gary, IN 46407 Gary, IN 46402

219/886-2403 219/882-6004

*Counsel of Record

QUESTIONS PRESENTED

1. Whether the Seventh Circuit Court of

Appeals incorrectly relied upon F.R.A.P.

3(a) in stating its belief that it was

appropriate to impose sanctions against

Appellant and his counsel for their failure

to strictly follow F.R.A.P. 10(b) and

publicly reprimanding them by specifically

naming them in the body of the Opinion and

referring this case to the Indiana

Disciplinary Board, without prior notice,

and without a finding of bad faith, or a

showing of prejudice to the Appellee in

contravention of the law of other circuits

and this Court.+

2. Whether the Seventh Circuit Court of

Appeals approved a departure by the trial

court from the accepted and usual course of

judicial proceedings in determining that

Appellant raised no objection to the trial

court's Jury Instruction 24, when no

transcript of the entire conference was

made and when Appellant's claim in his Rule

59 motion, supporting memoranda, and on

appeal was that the jury should have been

provided with two sets of jury verdict

forms, so that the jury could have decided,

separately, his first claim regarding his

December, 1985 discharge and his’~ second

claim regarding his October, 1987

constructive discharge.

1 At least one (1) petition for

certiorari involving this question is

presently pending before this Court, to

wit: L. Steven Platt v. U.S. Court of

Appeals for the Seventh Cir., No. 88-1756.

TABLE OF CONTENTS

QUESTIONS PRESENTED ‘are Ros

TABLE OF CONTENTS ch Se

TABLE OF AUTHORITIES Evie Roe

TITLE PAGE ye: wlché toe

OPINIONS BELOW ob See

JURISDICTION - oi tear eice

CONSTITUTIONAL PRO- » &03 wees

VISICNS INVCLVED

RULES INVOLVED ‘Sebue

STATEMENT OF THE CASE shiéd) a A

REASONS FCR GRANTING THE WRIT . .

A. The Seventh Circuit Court

of Appeals incorrectly relied upon

F.R.A.P. 3(a) in stating its belief

that it was appropriate to impose

sanctions against Appellant and his

counsel for their failure to

strictly follow F.R.A.P. 10(b) and

publicly reprimanding them by

specifically naming them in _ the

body of the Opinion and referring

this case to the Indiana

Disciplinary Board, without prior

notice, and without a finding of

bad faith, or a showing of

prejudice to the Appellee in

contravention of the law of

other circuits and this circuit.

B. The Seventh Circuit Court

of Appeals approved a departure by

the trial court from the accepted

and usual course of judicial

proceedings in determining that

Appellant raised no objection to

the trial court's

Page

ii -iii

iv-vi

11-19

jury Instruction 24, when no

transcript of the entire

conference was made and when

Appellant's claim in his Rule 59

motion, supporting memoranda, and

on appeal was that the jury

should have been provided with

two sets of jury verdict forms,

so that the jury could have

decided, separately, his’ first

claim regarding his December,

1985 discharge and his’~ second

claim regarding his October, 1987

constructive discharge.

CONCLUSION ° Su .

APPENDIX A Order of the U.S.

Court of Appeals

for the 7th Circuit

denying Suggestion

APPENDIX B Opinion of the U.S.

Court of Appeals

for the 7th Circuit

affirming District

Court's

Decision

APPENDIX C Order of the

District Court

denying Motion For

New Trial

APPENDIX D Judgment and Order

of the U.S.

District Court

APPENDIX E Court's Instruction

No. 24

iii

20-30

TABLE OF AUTHORITIES

CASES

Acevedo v. Immigration & Naturali-

zation Service, 538 F2d 918 (2nd

Cir. 1976)

Alloy Intern. Co. v. Hoover-NSK

Bearing Co., 635 F2d 1222 (7th

Cir. 1980)

American Watch Corp. v. Princess

Ermine Jewels, 786 F2d 1447 (9th

Cir. 1986).

Baskin v. Hawley, 847, F.2d 1120,

1134 (2nd Cir. 1986).

Bowley v. Stotler & Co., 751 F.2d

641, 647-648 (3rd Cir. 1985);

Brown v. Avemco Inv. Corp., 603

F.2d 1367, 1375 (9th Cir. 1979)

Burlington Northern R. Co. Vv.

B.M.W.E., 7/33 F.2d 792 (6th Cir.

1986 )

City of Newport v. Fact Concerts,

Inc, 101 S.Ct. 2748 (1981).

Dawson v. Lennon, 799 F2d 934 (llth

Cir. 1986);

Gulf Water Benefaction Co. v.

Public Utility Comm'n, 674 F2d.

462, 466 (5th Cir. 1982)

PAGE

TABLE OF AUTHORITIES (CONT. )

Inryco, Inc. v. Metropolitan

Engineering Co., Inc., 705 F.2d

1225 (7th Cir. 1983)

Kramar v. Securities Gas And Oil

Inc., 671 F.2d 766, 769 (9th Cir.

Kurowski, et al. v. Krajewski, 848

F.2d 767, (7th Cir. 1988)

Martin v. City of New Orleans, 678

F2d 14 1321, 1325 (5th Cir. 1982)

N.L.R.B. v. Smith & Wesson, 424 F2d

1072 (ist Cir. 1970)

Platt v. U.S. Court of Appeals

for the Seventh Cir., No. 88-1756

Pryor v. Gulf Oil Corp., 704 F2d

1366 (5th Cir. 1983)

Reid v. United States 715 F2d 1148

at 1155 (7th Cir. 1983).

Roadway Express, Inc. v. Piper,

447 U.S. 752 100 S.Ct. 2455 (1979)

Scherer v.Kelly, 584 F.2d 170

at 174 (7th Cir. 1978)

United States v. One Motor Yacht

Named Mercury, 527 F.2d, 1112

(lst Cir. 1975)

PAGE

14,

RULES

F.R.A.P. 10(b)

F.R.A.P. 3(a)

F.R.A.P. 46(c)

ARTICLES

Fed. Ct. Management Statistics

Adm. Office of the U.S. Courts

(1988 )

4, 12, 19

6, 12, 13

14, 19

12, 17

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

LLOYD B. FISHER,

Petitioner,

Vv.

JUDGE JAMES J. KRAKEWSKI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner petitions for a writ of

certiorari to review the judgment in this

case of the United States Court of Appeals

for the Seventh Circuit.

OPINIONS BELOW

The Order of the United States Court of

Appeals for the Seventh Circuit (App. A.,

infra) denying Petiticner's Suggestion for

Rehearing is not’ reported. The judgment

and opinion of the United States Court of

Appeals for the Seventh Circuit (App. B,

infra) is not reported. The order of the

District Court denying Petitioner's Motion

For New Trial (Appx. C, infra) is not

reported. The judgment of the United

States District Court for the Northern

District of Indiana, Hammond Division,

(App. D, infra) is not reported.

JURISDICTION

The Order of the Unitea States Court of

_Appeals for the Seventh Circuit, affirming

the judgment of the United States District

Court for the Northern District of Indiana,

Hammond Division, was entered on May 2,

1989. The Order of the United States Court

of Appeals denying the Petition for

rehearing was entered on June 13, 1989.

The jurisdiction of this Court is invoked

under 26 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The United States Constitution, 5th

Amendment, in its pertinent part, provides

as follows:

“No person shall be ° . °

deprived of life, liberty, or

property, without due process of

law; nor shall private property be

taken for public use, without just

compensation."

RULES INVOLVED

F.R.A.P. 46(c), in its pertinent part

states:

"(c) Disciplinary Power of the

Court Over Attorneys. A court of

appeals may, after reasonable

notice and an opportunity to show

cause to the contrary, and after

hearing, if requested, take any

appropriate disciplinary action

against any attorney who practices

before it for conduct unbecoming a

member of the bar or for failure

to comply with these rules or any

rule of the court."

P.R.A.P. IOCH}, in its pertinent part,

states:

*(b) The Transcript of

Proceedings; Duty of Appellant to

Order; Notice to Appellee if

Partial Transcript is Ordered.

(1) Within 10 days after filing

the notice of appeal the appellant

shall order from the reporter a

transcript of such parts of the

proceedings not already on file as

the appellant deems necessary,

subject to local rules of the

courts of appeals. The order

shall be in writing and within the

same period a copy shall be filed

with the clerk of the district

court. If funding is to come from

the United States under the

Criminal Justice Act, the order

shall so state. If no such parts

of the proceedings are -to be

ordered, within the same _ period

the appellant shall file a

certificate to that effect.

(2) If the appellant intends to

urge on appeal that a finding or

conclusion is unsupported by the

evidence or is contrary to the

evidence, the appellant shall

include in the record a transcript

of all evidence relevant to such

finding or conclusion.

(3) Unless the entire transcript

is to be included, the appellant

shall, within the 10 days time

provided in (b)(1) of this Rule

10, file a statement of the issues

the appellant intends to present

on the appeal and shall serve on

the appellee a copy of the order

or certificate and of the

statement. If the appellee deems

a transcripr or other parts of the

proceedings to be necessary, the

appellee shall, within 10 days

after the service of the order or

certificate and the statement of

the appellant, file and serve on

the appellant a designation of

additional parts to be inciuded.

Unless within 10 days after

service of such designation the

appellant has ordered such parts,

and has so notified the appellee,

the appellee may within the

following 10 days either order the

parts or move in the district

court for an order requiring the

appellant to do so.

(4) At the time of ordering, a

party must make satisfactory

arrangements with the reporter for

payment of the cost of the

transcript.

F.R.A.P. 3(a), in its pertinent part,

states:

Appeals as of Right - How Taken

(a) Filing the Notice of Appeal.

An appeal permitted by law as of

right from a district court to a

court of appeals shall be taken by

filing a notice of appeal with the

clerk of the district court within

the time allowed by Rule 4.

Failure of an appellant to take

any step other than the timely

filing of a notice of appeal does

not affect the validity of the

appeal, but is ground only for

such action as the court of

appeals deems appropriate, which

may include dismissal of the

appeal.

STATEMENT OF THE CASE

This is an action instituted in the

United States Federal Court for the

Northern District Of Indiana, Hammond

Division. The Plaintiff/Appellant, LLOYD

B. FISHER, alleged that in December, 1985,

the Defendant/Appellee, JUDGE JAMES J.

KRAJEWSKI, fired him from his position as

Public Defender in Lake County Court, Div.

III, effective January 1, 1986, because of

his political association in violation of

the First Amendment to the United States

Constitution. ¥£zThe Defendant, Krajewski, a

Republican, claimed that: (1) the

Plaintiff was fired because of his

association with the former Democratic

Judge, Orval W. Anderson, a convicted

felon; and (2) the Plaintiff served

inadequately when he was asked to serve as

Judge Pro Tempore.

Democrats Dave Nicholls and Steve

Kurowski, two other Public Defenders, were

discharged along with the Plaintiff in

December 1985. All three were reinstated

by the Defendant, Krajewski, On October 19,

1987. This was as a result of a judgment

against Defendant Krajewski in a lawsuit

filed by Public Defenders Nicholls’ and

Kurowski and tried without a jury in

September, 1987. Defendant Krajewski,

then, constructively discharged all three

(3) public defenders, resulting in a

contempt of court order as to Nicholls and

Kurowski. (Kurowski et. al. v. Krajewski,

848 F.2d 767 (7th Cir. 1988) cert denied,

109 §.Ct. 309 (1988). The Plaintiff

amended his complaint to add a claim that

in October 1987, the Defendant, Krajewski,

constructively discharged him, as well as

Nicholls and Kurowski, in retaliation

because of the seis by the Plaintiffs of

their constitutiional rights by way of the

District Court proceedings.

The jury, on February 10, 1988,

returned a verdict in favor of the

Appellee, JAMES J. KRAJEWSKI, and against

the Appellant, LLOYD B. FISHER. (See Appx.

D). A motion for a new trial was filed by

the Plaintiff on February 22, 1988 and said

motion was denied on March 3l, 1988 (See

Appx. C). Appellant appealed.

On May 2, 1989, the Seventh Circuit

Court of Appeals issued an opinion

affirming the jury verdict and the

magistrate's denial of the Appellant's

motion for a new trial. (See Appx. B).

On appeal, the Appellant contended,

inter alia, that the jury should have been

given two (2) seperate sets of verdict

forms: one (1) relating, to his January l,

1986 discharge, and one (1) relating to

his October 19, 1987 constructive

discharge. The Appellant contends that the

fact that he did not specifically object to

Jury Instruction No. 24, which contained

one set of jury verdict forms, allowing for

one verdict in favor of the Appellee

Krajewski or one verdict in fazvor of the

Appellant Fisher, did not constitute a

waiver of that objection. (See, Appx. E).

Appellant/Plaintiff contended that his

attorney's quiery "The jury verdicts, it

will be two separate verdicts" indicates

that the court's attention was sufficiently

called to the necessity for two - such

seperate jury verdict forms.

Further, the Appellate Court's Opinion

indicated as follows:

Furthermore, we believe that it

is appropriate, pursuant to Fed.

R. App. P. 3(a), to impose

sanctions in the total amount of

$1,500.00 to be borne in equal

measure by the plaintiff/appellant

Attorney Lloyd B. Fisher and each

of his attorneys of record on

appeal, Gilbert King, Jr. and

Macarthur Drake, for their failure

to submit any part of the

transcript of the lower court

proceedings; failure to file a

certification showing that’ they

did not intend to do so; failure

to notify the Appellee of their

intention not to file the

transcript, all in violation of

Fed. R. App. P. 10(b). In

addition, we refer this case to

the Indiana Disciplinary Board for

investigation, review and any

action they deem appropriate under

the circumstances.

Id., at p. 22; Appx. B-22.

Appellant's Suggestion For Rehearing In

Banc was filed June 2, 1989 and denied June

13, 1989. (See, Appx. A).

10.

REASONS FOR GRANTING THE WRIT

tect lee

A. THE SEVENTH CIRCUIT COURT OF

APPEALS INCORRECTLY RELIED UPON

F.R.A.P. 3(a) -IN STATING ITS BELIEF

THAT IT WAS APPRCPRIATE TO IMPOSE

SANCTIONS AGAINST APPELLANT AND HIS

COUNSEL FOR THEIR FAILURE TO STRICTLY

FOLLOW F.R.A.P. 10(b) AND PUBLICLY

REPRIMANDING ‘THEM BY SPECIFICALLY

NAMING THEN IN THE BODY OF THE OPINION

AND REFERRING THIS CASE TO THE INDIANA

DISCIPLINARY BOARD, WITHOUT PRIOR

NOTICE, AND WITHOUT A FINDING OF BAD

FAITH, OR A SHOWING OF PREJUDICE TO

THE APPELLEE IN CONTRAVENTION OF THE

LAW OF OTHER CIRCUITS AND THIS COURT.

This Petition For Writ of Certiorari is

of exceptional importance because the

Seventh Circuit Court of Appeals_ has

departed so far from the accepted and usual

course of judicial proceedings as to call

for this Court's power of supervision.

Without any evidence of bad faith or undue

prejudice to the Appellee, the appellate

Court indicated that it was appropriate to

impose sanctions in the total amount of

$1,500.00, to be borne in equal measure by

ll.

the Appeliant, an attorney, and each of his

two attorneys of record, in addition to

referring this case to the Indiana

Disciplinary Board for investigation

because Appellant failed to follow F.R.A.P.

10(b). As a basis’ for’ the sunegeeted

imposition of sanctions, the appellate court

misapprehended F.R.A.P. 3(a) and its ruling

conflicts with the applicable substantive

standards for the imposition of sanctions

as established by the Seventh Circuit, as

well as other circuits and the United

States Supreme Court, thereby establishing

new precedent in the circuit which would

seem to allow the imposition of sanctions

on litigants and their counsel for a single

rule. All of this was done without regard

to the pclicy and procedure established by

Fed. R. App. P. 46(c).

At page 5 of the Opinion, (Appx. B-5),

the appellate court indicated:

12.

—_

‘ :

Judge Krajewski, after filing the

transcript, maintains that we

should dismiss the appeal because

the appellant failed to comply with

Rule (10)b. While Rule 10 does

speak of sanctions for violation ot

its requirements, Fed. R. App. R.

3(a) states:

Failure of an appellant

to take any step other

than the timely filing

of a notice of appeal

does not affect the

validity of the appeal,

but is ground only for

such action as the court

of appeals deems

appropriate which may

include dismissal of the

appeal.

This rule, by its title, "Filing the

Notice of Appeal", applies to the notice of

appeal only. The rule sets forth those

procedures an appellant must follow in-

order to transfer his case from a federal

district court to a court of appeals. It

specifically applies to the timeliness and

contents of the notice.

Moreover, Fed. R. App. P. 3(a) has been

given a liberal construction as it applies

13.

hatte crenata

to the notice of appeal in the Seventh

Circuit, (See Scherer v. Kelly, 584 F.2d

170 at 174 (7th Cir. 1978). The literal

intent and obvious purpose of this rule is

to avoid the necessity for dismissing

appeals on technical grounds when the court

can reach a decision on the merits.

It is not intended to be ae catchall

provision for any transgression of the

appellate rules.

The appellate court, in relying on Gulf

Water Benefaction Co. v. Public Utility

Commission, 674 F.2d 462 (5th Cir. 1982)

and United States v. One Motor Yacht Naned —

Mercury, 527 F.2d 1112 (lst Cir. 1975),

erroneously concluded that pursuant to Fed.

R. App. P. 3(a) an appeal may be dismissed

for failure to comply with Rule 10(b).

These cases are distinguishabvle from the

one at bar. In each of those cases there

was a local rule relative to a violation of

14.

tie nt Be

Fed. R. App. P. 10. In Gulf, supra, there

was a bankruptcy rule 806 and in One Motor

Yacht, supra, there was local rule 7.

There is no such local rule in the Seventh

Circuit.

In determining whether a case is an

appropriate one for the imposition of

sanctions, the Seventh Circuit

traditionally looks for some indication of

the appellant's “bad faith" suggesting that

the appeal was prosecuted with no

reasonable expectation of altering the

district court's judgment and for purposes

of delay or harassment or out of sheer

obstinancy. Reid v. United States, 715

F.2d 1148 at 1155 (7th Cir. 1983). An even

higher standard is used to support direct

action against a party. Inryco, Inc. v.

Metropolitan Engineering Co., Inc., 705 F2d

1225 (7th Cir. 1983).

Other circuits have looked for some

15.

indication of “bad faith" prior to the

imposition of sanctions. See, Acevedo v.

Immigration & Naturalization Service, 538

F.2d 918 (2nd Cir. 1976); N.L.R.B. v. Smith

& Wesson, 424 F.2d 1072 (lst Cir. 1970);

Dawson v. Lennon, 799 F.2d 934 (llth Cir.

1986); American Watch Corp. v. Princess

Ermine Jewels, 786 F.2d 1447 (9th Cir.

1986).

Similarly, this Court has consistently

indicated that a finding of bad faith

should precede sanctions of counsel.

Roadway Exp., Inc. v. Piper, 447 U.S. 752,

100 S.Ct. 2455 (1979).

Since there was no finding of bad faith

as to the Appellant or his counsel, this

diecision contradicts decisions in_ the

Seventh Circuit, other circuits and this

Court. Plaintiff was not even a counsel of

record.

The federal appellate rules for

16.

—~

imposition of sanctions provide some

fundamental Fifth Amendment constitutional

Guarantees not afforded Appellant and/or

his attorneys in the instant case. Fed. R.

App. P. 46(c) provides, in pertinent part,

as follows:

Court Over Attorneys. A court of

appeals may, after reasonable

notice and an opportunity to show

cause to the contrary, and after

hearing, if requested, take any

appropriate disciplinary action

against any attorneys who practices

before it for conduct unbecoming a

member of the bar or for failure to

comply with these rules or any rule

of the court.

Prior to the receipt of the Opinion

herein, neither the Appellant nor his

attorneys had any notice that they would be

publicly reprimanded by their names being

specified in the body of the Opinion. They

did not have notice that this case would be

referred to the Disciplinary Board for the

State of Indiana, nor has there been an

opportunity to show cause why these actions

17.

should not be taken. 7

The Seventh Circuit Court of Appeals

has issued a disproportionate number of

sanctions in relation to the number of

cneiin handled by that circuit. For

example, since January 1, 1986, the Seventh

Circuit Court of Appeals has imposed

sanctions in 37 reported cases, more than

any other circuit. During this same period

of time, the Fifth Circuit had 24 sanctions

cases and the Ninth Circuit had as

However, the most astonishing fact is that

both circuits handled twice as many appeals

as the Seventh Circuit.

2 Caseload figures are drawn from

Administrative Office of the U.S. Courts,

Federal Court Management Statistics, 12,

16, 20 (1988). See, Petition in Platt,

supra, at p. 20. i

18.

Yet Petitioner has been unable to find any

other reported opinion in which a court

of appeals has approved sanctions for an

alleged violation of F.R.A.P. 10(b).

The misapplication of Fed. R. App. P.

3(a), and the pubiication of the belief

that sanctions should be imposed, virtually

public reprimand, without a finding of bad

faith or an opportunity to be heard are

clear violations of the rights guaranteed

to litigants and their counsel by the Fifth

Anendment. These violations warrant the

Granting of this Petition For Writ of

Certiorari. This Court could then clarify

the standards for the imposition of

sanctions and the application of the

appellate rules. Also, it could resolve

the split in this regard among the circuits

and any variance with the opinions of this

B. THE SEVENTH CIRCUIT COURT OF

APPEALS APPROVED A DEPARTURE BY THE

TRIAL COURT FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEEDINGS

IN DETERMINING APPELLANT RAISED NO

OBJECTION TO THE TRIAL COURT'S JURY

INSTRUCTION 24 WHEN NO TRANSCRIPT OF

THE ENTIRE CONFERENCE WAS MADE AND

WHEN APPELLANT'S CLAIM IN HIS RULE 59

MOTION, SUPPORTING MEMORANDA, AND ON

APPEAL WAS THAT THE JURY SHOULD HAVE

BEEN PROVIDED WITH TWO JURY VERDICT

FORMS, SO THAT THE JURY COULD HAVE

DECIDED, SEPARATELY, HIS FIRST CLAIM

REGARDING HIS DECEMBER, 1985 DISCHARGE

AND HIS SECOND CLAIM REGARDING HIS

OCTOBER, 1987 CONSTRUCTIVE DISCHARGE.

There is a difference of opinion among

the circuits as to the duty of the trial

court to fully instruct the jury, as

Opposed to the duty of the litigant's

counsel to object or offer curative

instructions when the trial court does not

fully instruct the jury.

The Ninth Circuit has held that a

formal objection to a jury instruction is

not necessarily required when the appellant

has previously made his position

sufficiently clear to the trial court.

20.

See, Kramar v. Securities Gas and (Cil,

Inc., 671 F.2d 766, 769 (9th Cir. 1982);

and Brown v. Avemco Inv. Corp., 603 F.2d

1367, 1375 (9th Cir. 1979).

The Third Circuit has followed these

cases in holding that even if a plaintiff

did not formally object to a jury

instruction on a fundamental issue, it is

appropriate for tne Court of Appeals to

consider the instruction in the context of

the record on that issue. See, Bowley v.

Stotler & Co., 751 F.2d 641, 647-648 (3rd

Cir. 1965).

The Second Circuit has held that its

trial court properly set aside a jury

verdict on the ground that the jury had

received inadequate instructions, although

not objected to, on a fundamental issue

causing substantial injustice. See, Baskin

v. Hawley, 847, F.2d 1120, 1134 (2nd Cir.

1986).

In the instant case, the record of the

Court of Appeals and of the District Court

clearly show that Appellant/Plaintiff filed

two separate and distinct claims of First

Amendment rights violations. In fact, on

page ll of Defendant Krajewski's

Memorandum, filed February 29, 1988,

opposing Plaintiff's Rule 59 Motion for a

new trial, Defendant states:

“Indeed, as aeresult of the

instruction conference Court's

instruction 18 was modified to

make it clear that there were two

separate issues of fact based upon

two separate legal claims."

(Deft.'s Memo. In Opp. to New Triai,

Appellant's Appellate Court Appx. 20, p.

146). Thus, each discharge had _ been

clearly raised and each constituted a

fundamental issue requiring the central

focus of the jury and the jury instructions.

Apparently, the Court of Appeals

misapprehended that there was an unrecorded

jury instruction conference. It concluded

22.

in its Opinion that:

The appellant failed to object to

the court's instruction number

24. However, the appellant's

counsel queried the. magistrate:

"The jury verdicts, it will be two

separate verdicts?" to which the

magistrate responded affirmatively.

Judge Krajewski contends on appeal

that the appellant waived the

right to object to the verdict

form on appeal because he failed

to object in the trial court. We

agree. The appellant failed to

object to instruction 24, and it

contains "two separate verdicts."

as his query sought to confirm.

Thus, his question to the

magistrate does not even suggest

he was in disagreement with the

verdict from contained in the

instruction. Nor did the

appellant ever clearly explain to

the magistrate that he wanted

separate verdict forms relating to

his January 1, 1986, discharge and

his alleged constructive discharge

of October 19, 1987, and he failed

to submit any such proposed

verdict form.

Krajewski II, supra, Slip Op. at pg. 20;

Appx. B-20.

Nothing in the transcribed jury

instruction discussion makes mention of the

modification of Court Instruction 18.

23.

(See, Trial Trscp. Vol. III, pgs. 375-379. )

Thus, the modification of Court Instruction

18 could have only occurred off the record,

Apparently, the trial court did not take

into account this off-the-record jury

instruction conference in its order denying

Plaintiff's motion for a new trial.

Burlington Northern R. Co. v. B.M.W.E., 793

F.2d 792 (6th Cir. 1986)

Although, Appellant believed the entire

trial transcript was not necessary on

appeal, due to the trial court's detailed

order denying his Motion for New Trial, the

transcript is revealing on this point.

What the trial transcript reveals is

further evidence that the entire jury

instruction conference was not

transcribed. At the end of the second

trial day, the transcript indicates that

all the evidence was in, the jury was

recessed overnight and counsel for the

24.

parties were to meet with the court for a

Giscussion prior to the jury recommencing

at 9:30 the following’ morning. (Trial

Transcript, Vol. II, pgs. 371-372).

The beginning of the transcript of

proceedings for the third day states as

follows:

THE COURT: Okay. After

discussing the instructions with

the attorneys on behalf of the

plaintiff, who wants to speak?

Mr. Drake, Mr. King, do you have

any objections to the wording of

any of the instructions that I

have indicated that I will give,

Instructions 1 through 25?

(Te. Teeépt., Vol. I12, pg. 375).

Clearly, the District Court's ". : °

discussing the instructions with the

attorneys . . -", as referred to above,

took place outside the transcribed record.

Thus, not all of the jury instruction

conference was transcribed, contrary to the

apprehension of the Court of Appeals.

Under these circumstances, the Court of

25.

Appeals should have been set on an inquiry

of the trial record as a whole to determine

if seperate verdict forms for each of the

two (2) alleged wrongful discharges were

required. See, Alloy Intern. Co. v.

cr?

Hoover-NSK Bearing Co., 635 F2d 1222 (7th

Cir. 1980): and B.M.V.E., supra.

Even if the “seperate verdict

reference by Plaintiff's counsel was no

sufficient as an objection or request

modification of Court Instruction No. 24,

the error in omitting seperate verdic

forms for each discharge was so plain and

the injustice so obvious that it warrants

reversal by this Court. City of Newport v.

} = +

Fact Concerts, Inc, 10l S.C

However, Plaintiff contends that his

“separate verdicts reference was

sufficient notice to the trial court, given

the contex

appeal.

Z20-e

The context within which Plaintiff's

counsel asked the Magistrate about the "two

separate verdicts," and the Magistrate's

answer makes it clear that counsel's

inguiry sought confirmation of a prior

understanding. The question and answer

came at the end of the Magistrate's

transcribed request for objections to Court

Instructions 1-25, which had already been

discussed with counsel for both parties, as

illustrated above. The transcription reads

as follows:

THE COURT: Any other

instructions in 1 through 25 that

you have an objection to?

MR. KING: I think that -- that --

just one other point, Your Honor.

The jury verdicts, it will be two

separate verdicts?

THE COURT: That is correct.

MR. KING: Okay. We won't --

that's the substance of our

objection to the instructions that

the Couct has indicated it will

instruct the jury.

27.

(Tr. Trscp., Vol. III, pg. 376).

Clearly, the reason for this part of the

proceeding was to record differences that

had not been worked out between the court

and the parties' counsel at the earlier

“instruction conference,’ Thus, the

affirmative response to the question about

two separate verdicts would leave

Plaintiff's counsel with the impression

that there was no further objection,

modification or instruction proposal to be

made. This was sufficient to alert the

court of Plaintiff's bjection to the

Court's Instruction No. 24 as it was

Originally proposed.

where, as here, 2 Single set af

Anstructions fails to convey correct

guidance to the jury as to two seperate

Ty)

Claims, the single set 2} < instructions

constitute reversible error.

Also, if a review of the charge, as a

28.

whole, leaves the reviewing court with

substantial and ineradicable doubt as to

whether the jury has been properly guided

in its deliberations, then the jury's

verdict cannot stand. Martin v. City of

New Orleans, 678 F2d 1321, 1325 (5th Cir.

1982). In Pryor v. Gulf Oil Corp., 704 F2d

1366 (5th Cir. 1983), that court reversed a

district court case where a gneral jury

verdict form was submitted to the jury

which had at least two central issues to

decide. Requests for separate verdict

forms for each central issue were not

necessary to preserve the error in that

case.

Likewise, in the instant case, the only

inference available to the jury from the

Single set of verdict forms the District

Court provided is that: (a) Defendant was

guilty each of the two (2) times Plaintiff

was discharged; or (b) Defendant was

29. ‘

innocent each of those times. This all or

none limitation precluded the jury, in its

verdict, from distinguishing the first

discharge from the second.

III.

CONCLUSION

For all of the above reasons, the °

Petition for Writ of Certiorari should be

granted and Judgment and Order of the Court

of Appeals should be reversed.

Respectfully submitted,

. — 2 7 Af +

LL r ] WA tote oy th

LEC Nena /o ACT CCH BAKE

GILBERT KING, aR 7 -- “MACARTHUR DRAKE

Attorney for * Attorney for

Petitioners Petitioners

30,

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

a ee)

June 13, 1989.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

LLCYD B. FISHER,

Plaintiff-Appellant,

Appeal from

the United

States Dis-

trict Court

for the

Northern

NO. 87-1827 vs. District of

Indiana,

JUDGE JAMES J. KRAJEWSKI, Hammond

Defendant -Appellee. Division

No. 86 C 882

Andrew P.

Rodovich

Magistrate

wee ee eee ee ee ee ee ee

ORDE R

On consideration of the petition for

rehearing and suggestion for rehearing in

banc filed by counsel for

Flaintiff-Appellant, no judge in active

A-1l

service has requested a vote thereon, and

all of the judges on the Original pdnel

have voted to deny a rehearing.

Accordingly,

IT IS HEREBY ORDERED that the aforesaid

petition for rehearing be, and the same ls,

DENIED.

= tin elem De atti RELI yw eb Ml, allan

Se ee ea li at My, PD, A a al ay wise

RE CMI iw tN wR a NN a i eg ee a hl ll te a cl AB ta a

APPENDIX 8

n the

United States Court of Appeals

For the Seventh Circuit

No. 88-1827

LLoyD B. FISHER,

Plaintiff-Appellant,

JUDGE JAMES J. KRAJEWSKI,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern Distnct of Indiana, Hammond Division.

No. 86 C 882—Andrew P. Rodovich, Magistrate.

ArcuEeD DrecemBEeR 9, 1988—DeciDED May 2, 1989

Before CUMMINGS, COFFEY, MANION, Circuit Judges.

CorFrey, Circuit Judge. On January 1, 1986, Judge

James J. Krajewski discharged the appellant Lloyd Fisher

from his position as an assistant public defender in Lake

County, Indiana, prompting Fisher to file a lawsuit under

the United States Constitution and 42 U.S.C. § 1983.

Fisher appeals the jury verdict and the denial of his mo-

tion for a new trial. We affirm.

In June 1985 the defendant/appellee Krajewski, a Re-

publican, was appointed to fill a vacancy in the Lake

County (Indiana) Court, Division III, after the resigna-

tion of Judge Orval W. Anderson, a Democrat. On or

about December 12, 1985, Judge Krajewski informed Lake

B-1

2 No. 88-1827

County assistant public defenders Steve Kurowski, Dave

Nicholls and Lloyd Fisher, all of whom were Iemocratic

appointees of Anderson, that they would be terminated

effective January 1, 1986.

Subsequent to their termination Kurowsli and Nicholls

filed suit against Judge Krajewski in the United States

District Court for the Northern District of Indiana, con-

tending their discharge was politically motivated in viola-

tion of their first amendment right to freedom of speech.

Lloyd Fisher, the plaintiff/appellant in this action, did not

join in that suit.!

The parties in Krajewski I consented to a final disposi-

tion before a magistrate pursuant to 28 U.S.C. § 636(c).

Magistrate Andrew P. Rodovich presided over the trial

dealing with the question of whether Judge Krajewski ter-

minated Kurowski and Nicholls because of their politics,

and ruled in their favor.? In October 1987 Judge Kra-

jewski reinstated Nicholls and Kurowski, as well as Lloyd

Fisher, to their former positions as assistant Lake Coun-

ty, Indiana public defenders and directed them to report

to work on October 19, 1987, at 8:30 a.m.

On that day, Judge Krajewski issued a “Memorandum”

containing a “description of the job of public defender,

Lake County Court, Division III” and various employment

rules (relating, for example, to office hours, length of cof.

fee breaks and work assignments), copies of which were

provided to Fisher, Kurowski and Nicholls. The same day,

Judge Krajewski issued a “‘rider” to the above memoran-

dum informing Fisher, Kurowski and Nicholls ‘that pur-

suant to the employment rules as listed that your first

notice of being late has been filed because of your lute

arrival on October 19, 1987.” Judge Krajewski issued a

' We will hereafter refer to the Kurowski and Nicholls lawsuit

as Arayewski I.

2 The magistrate’s decision was later affirmed by this court in

Kurowski v. Krajewski, 848 F.2d 767 (7th Cir.), cert. denied, 109

S. Ct. 309 (1988).

B-2

”™ y

ON en Ae PO Bre COR, Alla tava satis i

Se A Ae eal ts Aap

No. 88-1827 3

second memorandum the same day, notifying the three

public defenders of ‘‘a second violation of the employee

rules of the Lake County Court” because they had changed

their work assignments without the Judge’s prior approval,

and imposed a one-week suspension for the rule violations.

In a letter dated October 28, 1987, Fisher informed Judge

Krajewski as follows: “‘Due to the current hostile, intol-

erable and retaliatory working conditions existing in and

around your courtroom, I am constrained, upon the ad-

vice of counsel, to decline your invitation to return to

work there on Thursday, October 29, 1987, or at any time

thereafter until further notice.”’

Following their October 19, 1987, suspension, Kurowski

and Nicholls filed a petition in the district court seeking

a contempt citation against Judge Krajewski for violation

of the magistrate’s Krajewski ] reinstatement order. After

hearing testimony on November 4, 1987, Magistrate Rodo-

vich made certified findings of fact, pursuant to 28 U.S.C.

§ 636(e), to district judge James Moody relating to the

events of October 19, 1987. The magistrate found that

Nicholls and Kurowski were not late for work on October

19 and that the written public defender empluyment rules

issued that day were designed ‘“‘to harass and possibly

trap [Kurowski and Nicholls] and give the defendant a rea-

son to discipline [them].” The district judge concluded that

the magistrate’s findings of fact were proper and found

Judge Krajewski in contempt of court for “disobedience or

resistance to [a] lawful order... .”" 28 U.S.C. § 636(e\1).

Fisher filed his lawsuit in the United States District

Court for the Northern District of Indiana, alleging that

he was discharged on January 1, 1986, because he was

a Democrat and Judge KrajewS8ki was interested in ap-

pointing a Republican to the position. Shortly before trial

Fisher amended his complaint, adding a claim that Judge

Krajewski imposed discriminatory terms and conditions

on his employment following his reinstatement on October

19, 1987. Fisher and Judge Krajewski consented to trial

before Magistrate Rodovich. The case was tried before

a jury, and the jury returned a verdict in favor of the

defendant/appellee Krajewski.

B-3

4 \ No. 88-1827

On appeal, Fisher argues that the magistrate erred in

barring any reference during trial to the findings of fact

made in Krajewski I and during Judge Krajewski’s con-

tempt hearing relating to his October 19, 1987, conduct.

He also alleges errors in the magistrate’s jury instruc-

tions and further contends that two separate verdicts

should have been presented to the jury, reflecting the

two counts in his amended complaint, one asking whether

Fisher’s January 1, 1986, discharge violated his first

amendment rights and the other asking whether he was

constructively discharged on October 19, 1987.

Initially we point out that the plaintiff/appellant, At-

torney Lloyd B. Fisher, failed to submit any part of the

transcript of the lower court proceedings; failed to file

a certificate stating that he did not intend to clo so; failed

to file a statement of the issues presented for review and

further failed to notify the appellee of his intention not

to file a transcript, all in violation of Fed. R. App. P.

10(b). Fed. R. App. P. 10(b) provides:

‘“(b) The Transcript of Proceedings; Duty of Ap-

pellant to Order; Notice to Appellee if Partial

Transcript is Ordered.

(1) Within 10 days after filing the notice of appeal

the appellant shall order from the reporter « tran-

script of such parts of the proceedings not already

on file as the appellant deems necessary, subject to

local rules of the courts of uppeals. .. . If no such

parts of the proceedings are to be ordered, within

the same period the appellant shall file u certificate

to that effect.

(2) If the appellant intends to urge on appeal that

a finding or conclusion is unsupported by the evidence

or is contrary to the evidence, the appellant shall in-

clude in the record a transcript of all evidence rele-

vant to such finding or conclusion.

(3) Unless the entire transcript is to be included,

the appellant shall, within the 10 days time provided

in (b) (1) of this Rule 10, file a statement of the issues

B-4

No. 88-1827 5

the appellant intends to present on the appeal and

shal] serve on the appellee a copy of the order or

certificate and of the statement... .”

Fisher’s counsel attempted to explain at oral argument

that the transcript was unnecessary to decide the issues

presented on review. We di e. In the absence of the

transcript or an agreed, certified statement of facts (see

Fed. R. App. P. 10(d)) it is impossible to review the trial

court’s rulings, particularly the magistrate’s bench ruling

excluding findings of fact and credibility determinations

made in Krajewski I and during Judge Krajewski's con-

tempt hearing. Fortunately, the appellee Judge Krajewski

ordered and filed a complete trunscnpt of the lower court

proceedings, realizing, as we do, that the transcript is re-

quired for meaningful review.

Judge Krajewski, after filing the transcript, maintains

that we should dismiss the appeal because the appellant

failed to comply with Rule 10(b). While Rule 10 does not

speak of sanctions for violation of its requirements, Fed.

R. App. P. 3(a) states:

“Failure of an appellant to take any step other than

the timely filing of a notice of appeal does not affect

the validity of the appeal, but is ground only for such

action as the court of appeals deems appropriate,

which may include dismissal of the appeal.”

It is obvious that an appellate court has no alternative

but to dismiss an appeal if the absence of the transcript

precludes meaningful review. Confronted with this situa-

tion, several courts of appeal have decided that the failure

tu file a transcript of the lower court proceedings war-

rants dismissal of the appeal. Thomas v. Computaz Corp.,

631 F.2d 139, 143 (9th Cir. 1980); Southwest Admin., Inc.

v. Lopez, 781 F.2d 1378, 1380 (9th Cir. 1986); Brattrud

v. Town of Exline, 628 F.2d 1098, 1099 (8th Cir. 1980);

Abood v. Block, 752 F.2d 548, 550 (11th Cir. 1985). See

also In re Plankinton Bldg. Co., 133 F.2d 900 (7th Cir.

1943) (dismissing an appeal because the appellant failed

to fulfill the requirements of former Fed. R. Civ. P. 75,

B-5

6 No. 88-1827

the predecessor to Fed. R. App. P. 10.) Two other cir-

cuits, while acknowledging their authority to dismiss the

appeals, have decided cases on the merits to the extent

it is practical and possible in the absence of a transcript.

Gulf Water Benefaction Co. v. Public Utility Comni'n,

674 F.2d 462, 466 (5th Cir. 1982); United States v. One

Motor Yacht Named Mercury, 527 F.2d 1112, 1113 (1st

Cir. 1975).

It is plain under Fed. R. App. P. 3(a) and the cases cited

above that an appeal may be dismissed for failure to com-

ply with Rule 10(b). However, in each of the cases re-

ferred to a judgment of dismissal was entered because

the courts were unable to engage in meaningful review

of the lower court proceedings based on the lack of a

record before them. That is not the situation here, as the

appellee properly took it upon himself at his own expense

and filed the transcript. Thus, meaningful review is possi-

ble, and we reach the merits in this case—although, us

we will discuss, we are troubled by the plaintiff-appellant

Attorney Lloyd B. Fisher’s, as well as his attorneys’ lack

of respect in failing to comply with the rules of the court

in neglecting to file a transcript they well knew or should

have realized was necessary for the proper adjudication

of the issues presented and in order that the justice sy-

stem they took an oath to uphold and respect might

operate properly.

EVIDENCE OF THE DECISION

RENDERED IN KRAJEWSKI I AND

OF THE CONTEMPT CITATION

Initially, the appellant challenges the magistrate’s rul-

ing excluding evidence of Judge Krajewski’s contempt

citation for his treatment of the Krajewski I plaintiffs

after their October 19, 1987, reinstatement. He also con-

tends that the jury should have been informed that the

magistrate had previously ruled against Judge Krajewski

in Krajewski I. Approximately one week prior to trial,

the appellee Judge Krajewski filed a motion in limine

B-6

‘

No. 88-1827

seeking exclusion of evidence of his contempt citation and

of the hearings and orders pertaining thereto, and fur-

ther requesting ‘‘that there be no reference to the deci-

sion in cause no. H 86-586 [Krajewski J],” on the grounds

that the evidence was irrelevant and likely to confuse and

prejudice the jurors.? On the day the trial commenced,

the appellant filed a motion captioned “Motion Requesting

This Court Take Judicial Notice of its Orders and Find-

ings in [Krajewski J},” asking that the court conclude as

a matter of law, based on Krajewski J, that Judge Kra-

jewski was entitled to neither absolute nor qualified im-

munity; and that the appellant’s public defender position

was neither a confidential nor a policymaking position and

therefore the appellant could not be discharged for politi-

cal reasons. See Branti v. Finkel, 445 U.S. 507, 517-20

(1980); Elrod v. Burns, 427 U.S. 347 (1976). The appellant

also requested that the court rule as a matter of law, based

on findings of fact made in connection with the contempt

proceeding, that Judge Krajewski discriminated against

Fisher in the terms and conditions of his employment fol-

lowing his reinstatement on October 19, 1987.

Ruling from the bench, the magistrate granted the ap-

pellant’s motion in part. However, the magistrate denied

3? The motion sought exclusion of Magistrate Rodovich’s decision

in Krajewski J, not this court’s affirmance, the motion having been

filed on February 2, 1988, four months prior to our June 2, 1988,

decision in Kurowski v. Krajewski, 848 F.2d 767.

‘ Specifically, the magistrate ruled as a matter of law that the

appellant did not hold a policymaking position and therefore could

not be discharged for political reasons, stating:

“Although there has not been a motion for summary judg-

ment filed in this ease, I will apply the same law in this case

us I have applied in the Nicholls and Kurowski case. In other

words, 1 already have ruled as a matter of law that | will

incorporate the orders in the previous case that the position

of public defender is not a quote, policy making position, or

a confidential position or a position whose political affiliation

is needed for the effective performance of the job as those

words are used in the various cases.

(Fvotnote continued on following page)

B-7

8 No. 88-1827

that part of the motion asking that the court “take judicial

notice” of Judge Krajewski’s contempt citation and of the

decision in Krajewski /, explaining that doing so would

usurp and interfere with the jury’s freedum “to assess

the credibility of each and every witness and to deter-

mine whether or not there was a political firing in this

case .... This entire dispute is up to the jury to decide

one way or the other.” The magistrate therefore granted

Judge Krajewski’s motion in limine excluding reference

to the previous Krajewski / decisions. On appeal, Fisher

urges that evidence of the contempt citation and the deci-

sion in Krajewski I should have been admitted because

it is highly probative of the defendant/appellee’s motives

with respect to Fisher’s January 1, 1986, discharge and

the alleged constructive discharge uf October 19, 1987.5

We will reverse a district court’s decision to exclude evi-

dence only upon demonstration of an abuse of discretion,

Schultz v. Thomas, 832 F.2d 108, 110 (7th Cir. 1987).

The magistrate ruled that the jury shouid not be in-

formed that he had previously ruled against Judge Kra-

jewski in Krajewski / or that Judge Krajewski had been

found to be in contempt of court for his treatment of the

Krajewski I plaintiffs on the theory that the evidence

would undermine the jury’s role as factfinder in Fisher's

suit. He explained:

* continued

_ So the only issue in this case is the motivation of Judge Kra-

Jewski at the time that this was—this decision was mace.”

Though the a ruling on the appellant’s motion does nut

refer to Judge Krajewski’s entitlement to absolute or qualified im-

munity, he had previously denied Judge Krujewski’s motion to dis-

miss Fisher's lawsuit on those grounds.

* As noted supra p. 5, it is impossible to review the magistrate’s

ruling in the absence of the transcript, a» we would be left to spec-

ulate as to the magistrate’s reasoning in excluding evidence of the

findings in the previous Krajewski / proceedings.

B-8

No. 88-1827 9

“There was the question as to my decision in the

Nicholls and Kurowski case. I will grant the defen-

dant’s motion in limine in that respect.

In other words, these are two separate cases with

two separate finders of facts. As in every case pre-

sented, there is the—always the possibility that the

finder of fact will choose to judge the credibility dif-

ferently than I did.

So I will grant the motion in limine to exclude any

reference to the fact that on a previous occasion that

I ruled in favor of the plaintiffs, Nicholls and Kurow-

ski, and inst the defendant, Judge Krajewski. In

other oor this jury is free to assess the credibility

of each and every witness and to determine whether

or not there was a political firing in this case.

I also will grant the motion in limine as to the con-

tempt citation that was presented to me; my recom-

mendation to Judge Moody in that; Judge Moody’s

accepting the recommendation and imposing sanc-

tions. I do not believe that that is a matter that can

come in by way of impeachment or any other matter.

s. * *

So, you know, our legal system is not perfect and

I have seen numerous cases, for example, where two

criminal defendants are tried separately and one

winds up being found guilty and the other winds up

being found not guilty and both convictions certain-

ly have to be affirmed or both jury verdicts certain-

ly have to be affirmed and this is the same case.

If this jury chooses to find in favor of the plain-

tiffs, that’s their prerogative. If they choose to find

in favor of the defendant, that is the jury’s preroga-

tive. But any prior rulings that I have made, any

pnor findings of facts that I have made are not res

judicata in these proceedings. This entire dispute is

up to the jury to decide one way or the other.”

B-9

19 No. 88-1827

The plaintiffs in Krajyewski / alleged that Judge Kra-

jewski discharged them effective January 1, 1986, because

of their political affiliation. Acting as trier of fact, the

magistrate “had to choose between competing stories”

regarding Judge Krajewski’s motive in discharging the

plaintiffs and “‘{had] to decide who to believe.” Kurowski

v. Krajewski, 848 F.2d at 771. Thus, in reaching his de-

cision in Krajewski I the magistrate made a number

of credibility determinations and rejected Judge Krajew

ski’s testimony positing a lawful basis for the plaintiffs’

discharge. See id. In this lawsuit Lloyd Fisher (like the

plaintiffs in Krajewski I) alleged that Judge Krajewski dis-

charged him effective January 1, 1986, for political rea-

sons. The jury in this case (like the magistrate in Kra-

jewski I) was called upon to determine the credibility of

Judge Krajewski’s testimony concerning whether or not

the discharge was politically motivated.

Similarly, the contempt citation turned on the credibility

of witnesses relating the events of October 19, 1987. We

do not have the transcript of the contempt hearing, but

Judge Krajewski stated during his deposition in this law-

suit that the magistrate found at the conclusion of the

contempt hearing that Kurowski and Nicholls were not

late for work on October 19, 1987, thut there were no

written public defender rules prior to that date and

further, the rules were designed to harass the public

defenders. The jury in this case also heard testimony con-

cerning the events of October 19, 1987, and had to deter-

mine whether the public defender rules were promulgated

and applied to the appellant Fisher in a discriminatory

fashion, in order to decide Fisher’s claim of constructive

discharge. It is plain that the roles of the factfinders in

Krajewski I, the contempt proceeding and this case over-

lapped to a significant extent.

We were confronted with a similar situation in Schultz

v. Thomas, 832 F.2d 108 (7th Cir. 1987). In that case, the

plaintiff filed a civil rights action against two Racine, Wis-

consin, police officers alleging false arrest and excessive

use of force in connection with plaintiff's arrest for disor-

B-10

No. 88-1827 }}

derly conduct. The plaintiff had previously Deen acquitted

of the disorderly conduct charge after a trial to the cuurt,

and the trial judge found that the police officers’ testi-

mony was not credible. The circuit court trial judge was

allowed to testify in a subsequent civil rights action to

the findings of fact and conclusions of law contained in

his opinion on the state charge, and a transcript of the

judge’s opinion was also admitted in evidence. We dis-

agreed with the judge’s ruling in the civil mghts case in

allowing the original trial judge to testify and remanded

that case for a new trial, holding that ‘(the judge’s| testi-

mony was irrelevant and tended to usurp the jury’s func-

tion in assessing the credibility of testifying witnesses.”

832 F.2d at 111. We explained our holding as follows:

“Obviously, the occurrence upon which Judge Flynn

decided the disorderly conduci charge was the same

as that placed before the civil rights jury. In deter-

mining whether the defendants violated Schultz’s civil

rights by falsely arresting him and then giving willful-

ly false testimony in order to secure his cenviction,

the jury was required to observe and listen to many

of the same witnesses giving the identical testimony

as that which formed the basis for Judge Flynn’s dis-

orderly conduct decision. Indeed, the afurequoted ex-

cerpts from Judge Flynn’s opinion so unavoidably

overlapped the jury’s role in assessing the credibility

of the key witness as to unfairly prejudice the defen-

dants by denying them the right tu have a jury de-

cide the facts which formed the claims against them.

See Wilmington v. J. I. Case Co., 793 F.2d 909, 919

(8th Cir. 1986) (upholding a district court’s refusal to

admit the text of an arbitration decision because it

would ‘either usurp the jury’s role in assessing cred-

ibility or would be unfairly prejudicial’).”’

832 F.2d at 110-11. As in Schultz, evidence underlying

Judge Krajewski’s contempt citation and the mayistrate’s

decision in Krajewski ] was the same as the evidence

placed before the jury in Fisher’s lawsuit. Because we

ure confident that admission of this evidence would usurp

B-11

12 No. 88-1827

the jurv’s freedom ‘“‘to assess the creclibility of each and

every witness and to determine whether or not there was

a political firing in this case,”” and would unfairly prejudice

Judge Krajewski in denying him the right to have a fair

and impartial jury decide the facts, we hold that the mag-

istrate did not abuse his discretion in excluding the

evidence.®

COURT'S INSTRUCTIONS 15, 16 AND 17

Fisher claims that the magistrate erred in giving the

court’s instructions 15, 16 and 17. The court’s instruction

15 states:

“You are instructed that evidence that political con-

siderations were, in general terms, important to the

defendant and that the defendant was displeased with

the plaintiff because of his political affiliation is not

sufficient evidence to meet the plaintiff's burden of

proof. Evidence that others were hired for purely

political reasons also is not sufficient by itself to meet

the plaintiff's burden. The plaintiff must establish that

his political affiliation was a motivating or substan-

tial factor in the decision to terminate his employ-

ment.”

$ We find no merit to the appellant's claim that the magistrate’s

ruling limited Fisher's ability to impeach Judge Krajewski based

on his testimony or admissions during Krajewak: I or the contempt

proceedings. The appellant has failed to cite, and we have been

unable to find, any portion of the transcript or record supporting

his contention that the magistrate precluded use of admissions or

inconsistent statements made during the previous pruceedings.

Moreover, the issue is moot as the appellant has also failed to iden-

tify any adverse admissions or inconsistent statements made in

the prior proceedings. Therefore, this argument also fails to con-

vince us that the magistrate abused his discretion in excluding

evidence of the contempt citation and the decision in Arajewski /.

B -12

oe ee

No. 88-1827 | 13

The court’s instruction 16 states:

“You are also instructed that to the extent that

the defendant as an employer lacked confidence in

the public defenders that he had inherited from the

prior administration for some reason other than their

political affiliation, he was free to discharge them.”

The court’s instruction 17 states:

“You are instructed that the plaintiff was an em-

loyee at will, which means that the plaintiff had no

egitimate claim of entitlement to continued employ-

ment as a public defender and could be terminated

for any reason or no reason, but he could not be ter-

a for exercising a constitutionaliy protected

right.”

We review a challenge to a jury instruction “both in

the context of the other instructions given and in light

of the allegations of the complaint, opening and closing

arguments and the evidence of record.” General Lease-

ways v. National Truck Leasing Ass'n, 830 F.2d 716, 725

(7th Cir. 1987). This inquiry must be undertaken “ ‘in a

common sense manner, avoiding fastidiousness, [and] in-

quiring whether the correct message was conveyed to the

jury reasonably well.’”’ General Leaseways, 830 F.2d at

725 (quoting Wilk v. American Medical Ass'n, 719 F.2d

207, 218 (7th Cir. 1983), cert. denied, 467 U.S. 1210 (1984)).

The appellant does not take issue with the last sentence

of instruction 15: “‘The plaintiff must establish that his

political affiliation was a motivating or substantial factor

in the decision to terminate his employment.” Nor does

he challenge the court’s instruction 13, which makes the

same point. Instruction 13 reads:

“Initially the burden is on the plaintiff to show that

his conduct was constitutionally protected and that

his conduct was a substantial or motivating factor in

the defendant’s actions toward him. If you find that

the plaintiff has met this burden, then the defendant

has the burden to establish by a preponderance of

B-13

—

14 No. %8-1827

the evidence that he would have reached the same

decision as to the plaintiff's employment even in the

absence of the protected conduct.”

Both the last sentence in instruction 15 and all of instruc-

tion 13 are derived from Mt. Heulthy City Schvol Dist.

Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977). This court

has held that the Mt. Healthy analysis applies where there

is a dispute, as in this case, regarding an employer’s moti-

vation in discharging an employee. Wren v. Jones, 635

F.2d 1277, 1286 (7th Cir. 1980), cert. denied, 454 U.S. 382

(1981); Nekolny v. Painter, 653 F.2d 1164, 1167 (7th Cir.

1981), cert. denied, 455 U.S. 1021 (1982).

The appellant argues that the first two sentences in in-

struction 15 added to his initial burden of demonstrating

that politics was a motivating factor in his discharge. in

suggesting that he also had to prove that political consid-

erations were important to Judge Krujewski or that Judge

Krajewski was displeased with Fisher’s political affiliation.

We disagree. Instruction 15 did not modify Fisher’s bur-

den of proving that politics was a substantial or moti-

vating factor in his discharge, rather it explained to the

jury that Fisher could not satisfy his burden merely by

demonstrating that Judge Krajewski was “displeased”

that Fisher is a Dernocrat or that Fisher’s political af-

filiation was “important” to Judge Krajewski. That ex-

planation of the meaning of the phrase “substantial and

motivating factor” reflects our observation in McClure v.

Cywinski, 686 F.2d 541, 545 (7th Cir. 1982), that a plain-

tiff cannot establish that politics is a motivating or sub-

stantial factor in his discharge simply by alleging that

politics is important to the employer or that the employer

is not wholly satisfied with the emp!oyee. See also

Nekolny v. Painter, 6535 F.2d at 1168. Therefore. instruc-

tion 15 was proper.

The appellant also alleges that instruction 16 incorrcct-

ly advised the jury that a public defender may be dis-

charged simply because his employer “lacks confidence”

in him. However, instruction 16 was lifted virtually verhba-

B-14

No. 88-1827 15

tim from the Supreme Court’s majority opinion in Brant:

v. Finkel, 445 U.S. 507, 520 n. 14 (1980), a case invoiv-

ing the discharge of a competent assistant public defender

because of his political beliefs, and is a proper statement

of the law. Moreover, Judge Krajewski’s testimony sup-

ports a finding that he “lacked confidence” in Fisher for

reasons other than his political affiliation. Judge Krajewski

testified that he terminated Fisher’s employment, not

becuuse of his political affiliation, but to restore public

respect for the Lake County court following the criminal

convictions of former Judge Orval Anderson and the for-

mer chief public defender Lee Christakis (see infra p. 26).

The same defense was presented in Krajewski J, and we

explained there that “If Judge Krajewski in fact thought

Kurowski and Nicholls [the two assistant public defenders

discharged along with Fisher] a blot on the court’s es-

cutcheon, he could fire them, whether they were or not.”

848 F.2d at 771. We also observed: “Since a public official

may fire subordinates for a good, bad, or indifferent rea-

son—any but an unconstitutional reason—the actual moral

stundards of Kurowski and Nicholls are irrelevant. /t was

enough that he had lost confidence in them.” Id. (emphasis

added) (citation omitted). We agree that instruction 16 ac-

curately reflects the law as recited in Branti v. Finkel

and Krajewski I.

The transcript of the jury instruction conference before

the magistrate reveals that the appellant raised no objec-

tion to the court’s instruction 17. The law is clear in this

circuit that an objection to a district court’s proposed jury

instruction is waived on appeal unless the — ob-

jected on the record in the district court and clearly stated

the reasons for the objection. See, e.g., United States v.

Marrinson, 832 F.2d 1465, 1473 (7th Cir. 1987). Having

failed to object to instruction 17 in the district court, the

appellant has waived the right to object on appeal.

FISHER’S INSTRUCTIONS B, C, C-1 AND D

The appellant also contends that the magistrate erred

in failing to give the appellant’s requested jury instruc-

B-15

16 No. 88-1827

tions B, C, C-1 and D. He argues that without these in-

structions the jury could not properly evaluate Judge Kra-

jewski’s defense that he discharged the appellant, not for

political reasons, but because Fisher was tainted with the

criminal convictions of former Lake County Judge Orval

Anderson and former Lake County Chief Prosecutor Lee

Christakis. Fisher’s requested instruction B states:

“The Defendant Judge Krajewski terminated the

Plaintiff Lloyd B. Fisher because of his association

with former Judge Orval Anderson.

If you find that this association between Mr. Fisher

and former Judge Orval Anderson is protected by the

lst Amendment to the United States Constitution;

and if you further find that this conduct was a sub-

stantial or motivating factor in Judge Krajewski’s

decision to terminate his employment, then

The Defendant James Krajewski must show by a

preponderance of the evidence that he would have

reached the same decision as to ther [sic] termina-

tion of Mr. Fisher even in [the] absence of the pro-

tected conduct.”

The appellant maintains that he has a constitutional

right of free association in the work place. Specifically,

he claims a right of free association with former Judge

Anderson and contends that instruction B properly ad-

vises the jury of that right. We have several problems

with the appellant’s argument. Initially, the first sentence

of instruction B advises the jury that Judge Krajewski

discharged the appellant “because of his association with

former Judge Orval Anderson.” That charge is an im-

proper attempt to direct the jury to resolve the central

issue in the case (the reason for the appellant’s discharge)

in a particular manner. Moreover, a fair reading of the

appellant’s complaint and amended complaint reveals that

he failed to allege that he was discharged because of his

“association” with former Judge Anderson. Instead,

Fisher claimed his employment was terminated because

of his political affiliation. Fisher’s instruction B alters his

B-16

No. 88-1827 17

theory of the case and would have confused the jurors.

Second. contrary to the appellant’s contention, Judge Kra-

jewski did not argue that ot discharged the appellant be-

cause of his “‘association’”’ with former Judge Anderson.

Rather, Judge Krajewski testified that he discharged the

appellant in response to public pressure to “clean up” the

Lake County Court and to improve the public’s percep-

tiun of the court. He testified that there was a public

perception “‘that the public defenders in conjunction with

the judge had these scams like going on,” in light of

“what had happened previously with the judge [Ander-

son] and... the chief public defender having been in-

dicted and convicted for criminal acts done while members

uf the court.” He also said that Lloyd Fisher was part

of the “old guard” that the public distrusted. Lastly, as

we stated in Krajewski I, Judge Krajewski was at liber-

ty to discharge the appellant if he believed the appellant’s

association with former Judge Anderson to be “‘a blot on

the court’s escutcheon.” 848 F.2d at 771. For these rea-

sons, we hold that the district court properly rejected the

appellant’s proposed instruction B.

Fisher’s instruction C states:

“You have heard evidence that:

Plaintiff's association with the former Judge Orval

Anderson was the reason for Plaintiff's discharge be-

cause of Defendant’s desire to clean the Court follow-

ing the resignation and conviction of Judge Orval

Anderson, for activities which did not involve Plain-

tiff.

The Plaintiff's freedom of association with Judge

Orval Anderson in the work place is also an associa-

tion protected by the First Amendment.

If you find that Plaintiff's freedom to associate in

the work place was infringed upon by his discharge,

then you must determine whether the Government

official’s interest in furthering a legitimate goal in

discharging Plaintiff was outweighed by Plaintiff's in-

B-17

18 No. 88-1827

terest in exercising his freedom of association in the

work place.

If you find that Defendant did not have a legimate

[sic] governmental interest in discharging Plaintiff or

if you find that the Plaintiff's interest in exercising

his freedom of association in the work place [sic], then

= must find for the Plaintiff and against the Defen-

ant.”

Fisher’s instruction C-1 is identical to instruction C above,

except that language is added to the final paragraph. We

set forth below the final paragraph of Fisher's instruc-

tion C-1, highlighting the added language:

“If you find that Defendant did not have a legimate

[sic] governmental interest in discharging Plaintiff, or

if vou find that the Plaintiff's interest in exercising

his freedom of association in the work place outweigh-

ed Defendant’s stated legitimate interest, then you

must find for the Plaintiff and against the Defendant.

If, however, you find that Defendant did have a legit-

imate governmental interest that outweighed Plain-

tiffs interest in exercising his freedom of association

in the workplace, then you must determine whether

or not Defendant had other means available to him

to accomplish that objective that would have caused

a lesser infringement on Plaintiffs First Amendment

rights.”

Instructions C and C-1 advise the jury to consider

whether Judge Krajewski discharged the appellant be-

cause he exercised his “freedom to associate in the work

place.’’ However, as noted above, the appellant filed this

suit claiming his employment was terminated because he

exercised his constitutional right to be a Democrat, not

because he “associated” with former Judge Anderson. The

appellant’s proffered instructions C and C-l, like his re-

quested instruction B, contradict his theory of the case

as presented in his pleadings and would have occasioned

considerable juror confusion. Furthermore, instructions C

and C-1 conflict with the court’s instruction 13, to which

B-18

No. 88-1827 19

the appellant did not object, reciting the parties’ respec-

tive burdens of proof under Mt. Healthy City School Dist.

Bd. of Ed. v. Doyle. As previously noted, the Mt. Healthy

analysis applies in this case, as there is a dispute regard-

ing Judge Krajewski’s motivation in discharging the ap-

pellant (see supra pp. 19-20). Mt. Healthy does not require

the factfinder to determine whether the employer’s in-

terests outweigh the interests of the employee, as the ap-

pellant’s proferred instructions C and C-1 advise. See

Wren v. Jones, 635 F.2d 1277, 1286 (7th Cir. 1980), cert.

denied, 454 U.S. 832 (1981). Therefore, instructions C and

C-1 were properly rejected because they fail to state the

law correctly, they contradict other approved jury instruc-

tions and would have confused the jury. Unfortunately,

we cannot say that we are surprised by the inconsisten-

cies and contradictions contained in the appellant’s re-

quested instructions, as the appellant’s trial attorneys also

filed this appeal—without a transcript of the district court

proceedings.

The appellant’s requested instruction D states:

“If you find that Defendant has borne his burden

of producing evidence of legitimate, non-political rea-

sons for terminating Plaintiff, then you must deter-

mine whether Plaintiff has established that it is more

likely than not that Defendant’s stated reasons are

pretextual, that is, not the real reasons for Plaintiff's

termination.

If you determine that Defendant’s stated non-politi-

cal reasons for Plaintiff's discharge were pretextual,

then you must find for the Plaintiff and against De-

fendant.”’

The instruction, as submitted in the district court, cites

as its source Texas Dep’t of Community Affairs v. Bur-

dine, 450 U.S.248 (1981), which established the allocation

of burdens and order of proof in discrimination actions

filed under Title VII of the Civil Rights Act of 1964 (42

U.S.C. § 2000e et seqg.). The instruction was inappropriate

Bg case, as Fisher did not allege a violation of Title

B-19

20 No. 88-1827

SPECIAL VERDICT

The appellant also contends that the jury should have

been given separate verdict forms relating, respectively,

to his January 1, 1986, discharge and his alleged October

19, 1987, constructive discharge. The language of the ver-

dict actually presented to the jury was contained in the

court’s jury instruction 24, stating:

“The forms of verdict read as follows:

‘We, the jury, find in favor of the defendant, James

J. Krajewski, and against the plaintiff, Lloyd B.

Fisher.’

‘We, the jury, find in favor of the plaintiff, Lloyd

B. Fisher, and against the defendant, James J. Kra-

jewski, and assess actual damages in the amount of

______ Dollars and punitive damages in the amount

— eg

Counsel for both parties were provided with copies of the

court’s proposed instructions 1-25 and were given the op-

portunity to object to them during a jury instruction con-

ference. The appellant failed to object to the court’s in-

struction number 24. However, the appellant’s counsel

queried the magistrate: “The jury verdicts, it will be two

separate verdicts?” to which the magistrate responded af-

firmatively.

Judge Krajewski contends on appeal that the appellant

waived the right to object to the verdict form on appeal

because he failed to object in the trial court. We ayree.

The appellant failed to object to instruction 24, and it con-

tains “two separate verdicts,”’ as his query sought to con-

firm. Thus, his question to the magistrate does not even

suggest he was in disagreement with the verdict form con-

tained in the instruction. Nor did the appellant ever clear-

ly explain to the magistrate that he wanted separate ver-

dict forms relating to his January 1, 1986, discharge and

his alleged constructive discharge of October 19, 1987, and

he failed to submit any such proposed verdict form.

B-20

No. 88-1827 21

As noted above, the appellant failed to file a transcript

of the proceedings before the magistrate, and also failed

to comply with the other requirements of Fed. R. App.

P. 10(b) (see supra p. 7). Contrary to the appellant’s con-

tention at oral argument, we could not have decided the

issues presented in this appeal without the court tran-

script. The transcript of the jury instruction conference

was certainly necessary in determining whether there had

been a waiver of objection to the court’s instruction 17

and to the form of verdict. In addition, the appellant, in

his brief and oral argument, challenged the magistrate’s

bench ruling excluding findings of fact and credibility

determinations made in Krajewski J and during Judge

Krajewski’s contempt hearing. It is impossible to properly

review a ruling made during the course of trial without

a transcript of the proceeding, particularly where, as here,

the parties disagree as to the scope and the specific

grounds for the ruling. in the absence of the transcript,

we are left to speculate as to the reasoning the trial court

wr ps8. in excluding the evidence at issue. This court

will not render a judicial decision founded on speculation.

It goes without saying that we expect and are entitled

to strict compliance with the appellate rules of procedure.

The appellant’s failure to comply with Rule 10(b) is par-

ticularly disturbing, as he is an attorney duly licensed to

practice in Indiana, as well as admitted to practice before

this court. In addition, he is represented by counsel on

appeal, and their default and conduct would have pre-

vented this court from engaging in meaningful review of

all of the challenges to the lower court’s rulings. More-

over, this is not a case where the appellant even at-

tempted to conform to the rules but was unsuccessful with

respect to timeliness or form. The record reveals no evi-

dence that Fisher attempted to adhere to Rule 10(b), as

he failed to file the transcript or perform any of the alter-

native acts set forth in the rule.

If, as the appellant’s counsel contended during oral argu-

ment, the plaintiff/appellant could not afford the cost of

transcribing all of the lower court proceedings, he had

B-21

29 No. 88-1827

three alternatives: he could have ordered the transcrip-

tion of only the relevant portions of the record, as Fed.

R. App. P. 10(b) permits, or filed an agreed, certified

statement of facts pursuant to Fed. R. App. P. 10(d), or

he could have sought authorization from the district court

to appeal in forma pauperis under 28 U.S.C. § 1915a)

(see Thomas v. Computax Corp., 631 F.2d at 143; see also

Fed. R. App. P. 24).

Because it is the appellant’s responsibility to file the

transcript of the lower court proceeding, and the appellant

failed to satisfy that obligation in this case, it is hereby

ordered, pursuant to Fed. R. App. P. 3Xe), that the costs

of appeal shall include the cost incurred in the prepara-

tion of the transcript.

Furthermore, we believe that it is appropriate, pursuant

to Fed. R. App. P. 3(a),”7 to impose sanctions in the total

amount of $1,500.00 to be borne in equal measure by the

plaintiff/appellant Attorney Lloyd B. Fisher and each of

his attorneys of record on appeal, Gilbert King, Jr. and

MacArthur Drake, for their failure to submit any part of

the transcript of the lower court proceedings; failure to

file a certification showing that they did not intend to do

so; failure to file a statement of the issues presented for

review; and failure to notify the appellee of their inten-

tion not to file the transcript, all in violation of Fed. R.

App. P. 10(b). In addition, we refer this case to the In-

diana Disciplinary Board for investigation, review and any

action they deem appropriate under the circumstances.

The judgment on the jury’s verdict and the magistrate’s

denial of the appellants’ motion for a new trial are hereby

AFFIRMED.

7 Fed. R. App. P. 3a) provides: “Failure of an appellant to tuke

any step other than the timely filing of a notice of appeal dues

not affect the validity of the appeal, but is ground only for such

action as the court of appeals deems appropriate, which may in-

clude dismissal of the appeal.”

B-22

No. 88-1827 23

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 79004—Midwest Law Printing Co., Inc., Chicago—5-2-89—500

B-23

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LLOYD B. FISHER, ay

Plaintiff, )

)

Vv. Civil No. H86-882

JUDGE JAMES J. KRAJEWSKI

Defendant.

)

ORDER

This matter is before the court on a

lotion for New Trial filed by the

plaintiff, Lloyd B. Fisher (hereafter

Fisher), on February 22, 1988. For the

reasons set forth below, the motion is

DENIED.

This motion arises out of a trial

ending on February 10, 1988, in which the

jury found in favor of the defendant, Judge

James J. Krajewski (hereafter Krajewski) on

all issues and claims. Fisher contends

that the Court's Instructions 15, 16 and 17

were incorrect: that the Court committed

C-1

error in refusing to submit two separate

verdict forms to the jury; that the Court

erred in refusing to take judicial notice

of a prior bench trial, Kurowski Vv.

Krajewski, Civil No. H86-586, decided

October 1, 1987, and contempt’ findings

against Krajewski entered in that action;

that the Court erred in granting

Krajewski's motion in limine’ regarding

evidence of the findins in Kurowski v.

Krajewski; that the Court erred in refusing

Fisher's proposed Instructions A through D,

including C-l; and that the Court erred in

refusing to permit Fisher to withdraw his

jury demand.

Krajewski, however, contends that

Fisher did not object to Instructions 15,

lo and 17 and has waived the right to do

sO; that in the alternative, the

instructions were correct; that Fisher's

proposed Instructions A through D, including

C=-2

C-l1 should be refused because they were not

timely; that, in the alternative,

InstructionA was covered by the Court's

instructions; that instructions B through D

were improper; that Fisher failed to object

to use of one verdict form and has waived

the right to do so; that it would have been

improper for the ‘Court to take judicial

notice of the prior proceedings; and that

Krajewski had a right to a jury trial.

Court's Instruction 15 provided:

You are instructed that evidence

that political considerations were,

in general terms, important to the

Gefendant and that the defendant was

displeased with the plaintiff

because of his political affiliation

is not sufficiant evidence to meet

the plaintiff's burden of proof.

Evidence that others were hired for

purely political reasons also is not

sufficient to meet the plaintiff's

burden. The plaintiff must

establish that his political

affiliation was a motivating or

substantial factor in the decision

to terminate his employment.

The instruction correctly states the

burden of proof-the plaintiff must establish

C-3

that political affiliation was a

substantial or motivating factor in the

decision to terminate his employment. Mt.

Healthy City School District Board of

Education, 429 U.S. 274, 287, 97 S.Ct. 568,

576, 50 L.Ed.2d 471, 484 (1977). The

Seventh Circuit explained that this burden

is not satisfied by showing "Ct jJhat

politics was important to the defendant."

McClure v. Cywinski, 686 F.2d 541, 545 (7th

Civ... 21962}; See Also Grossart v. Dinaso,

758 F.2d 1221, 1235 n.23 (7th Cir. 1985).

In McClure, the court clearly held that:

This standard is not satisfied if

the plaintiff shows only that

elimination of the protected

activity may have been welcomed by

the defendant or even that such

activity played some minor role in

the discharge decision.

686 F.2d at 546.

The instruction was proper.

Court's Instruction 16 provided:

Cc-4

You are instructed that to the

extent that the defendant as an

employer lacked confidence in the

public defenders that he had

inherited from the prior

administration for some reason other

than their political affiliation, he

was free tc discharge then.

This instruction is a correct statement

of the law, and there was evidence to

support giving the instruction. Krajewski

testified that Fisher had made mistakes

when he sat aS a judge pro tempore.

Krajewski was justified in terminating

Fisher if he lacked confidence in Fisher's

abilities as a public defender, and the

jury was entitled to an instruction to that

effect.

The Court's Instruction 17 provided:

You are instructed that the

plaintiff was an employee at will,

which means that the plaintiff had

no legitimate claim to entitlement

to continued employment as a public

Gefender and could be terminated for

any reason or no reason, but he

could not be terminated for

exercising a constitutionally

protected right.

A review of the transcript reveals that

Fisher did not object to this instruction

and has waived the right to object at this

stage in the proceedings. U.S. Vv.

Marinson, 832 F.2d 1465, 1473 (7th Cir.

1987). Fisher was an employee at will, and

the instruction correctly stated the

Indiana employee at will doctrine and was

the only sueh instruction given to the

jury. Miller v. Review Board, 436 N.E.2d

804, 807 (Ind. App. 1982). As such, the

instruction was proper.

Fisher did ask whether there would be

Separate verdict forms. The Court

responded in the affirmative because there

were two verdict forms: one in favor of

the defendant on all claims and the other

in favor of the plaintiff on all claims.

Apparently, Fisher wanted one verdict form

for the initial discharge effective January

1, 1986 and a second verdict for the October

C-6

19, 1987 incident. However, Fisher was

provided with a copy of the Court's

instructions including Court's Instruction

24 which in pertinent part provided:

The forms of verdict read as follows:

"We, the jury, find in favor of the

defendant, James J. Krajewski, and

aainst the plaintiff, Lloyd B.

Fisher.”

"We, the jury, find in favor of the

plaintiff, Lloyd B. Fisher, and

against the defendant, James J.

Krajewski, and assess actual damages

in the amount of Dollars

and punitive damages in the amount

of Dollars.”

Fisher did not object to Court's

Instruction 24, and did not submit any

proposed verdict forms or any _~ special

interrogatories. As such, Fisher has

waived the right to object.

Fisher also claims that the Court erred

in failing to take judicial notice of a

prior bench trial, Kurowski- v. Krajewski,

Civil No. H 86-586. In the Kurowski trial,

C-7

the Court was the trier of fact. In this

case, the jury was the trier of fact. If

this Court had admitted the Kurowski

decision into evidence or had taken

judicial notice of the decision, it

effectively would have usurped the jury's

role in assessing the credibility of

witnesses and determining the facts. It

also sould have been unduly prejudicial.

See Schultz _ v. Thomas, 832 F.2d 108,

110-111 (7th Cir. 1987); and Wilmington v.

J.L. Case Co., 793 F.2d 909, 919 (8th Cir.

1986). That evidence properly was excluded.

Fisher also objects to the Court's

failure to give plaintiff's proposed

Instructions A th[rJough D, including C-l.

Instructions A and B address the Mt.

Healthy standard and are covered by the

Court's Instructions 13, 14, 15 and 18.

Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at

576, 50 L.Ed.2d at 484. See also

C-&

—-

Liquid Air Corp. v. Rogers, 834 F.2d 1297,

1308 (7th Cir. 1984). Instructions C and

C-1 discuss Fisher's right to associate in

the work place with former judge Orval

Anderson. “Fisher did not raise this claim

in the Complaint or in the Pretrial Order.

Fisher's claims were based on the right of

political affiliation and the jury was

instructed accordingly. Instruction B is

based on Title VII. The shifting burden of

production and pretext analysis are not

applicable in a First Amendment political

firing case.

Finally, Fisher contends that he should

have been allowed to withdraw his jury

demand. Federal Rule of Civil Procedure

38(d) provides that:

A demand for trial by jury made as

herein provided may not be withdraw

without the consent of the parties.

Fisher had demanded a sury and both parties

were entitled to a jury trial. That demand

C-9

could not be withdrawn without Krajewski's

consent. Travelers Indemnity Co. v. State

Farm Mutual Auto Insurance Co., 330 F.2d

250, 259 (9th Cir. 1964). Krajewski did

not consent, and the case properly was

submitted to the jury.

Based on the foregoing, the Motion for

New Trial is DENIED.

ENTERED this 3lst day of March, 1988.

/s/

Andrew P. Rodovich

United States Magistrate

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LLOYD B. FISHER,

JUDGMENT IN A

CIVIL CASE

JUDGE JAMES J. KRAJEWSKI) CASE NO. H86-882

Individually and in his )

capacity as Judge of the)

Lake County Court, Div. )

Ese )

Jury Verdict: This action came before the

Court for atrial by jury. The issues have

been tried and the jury has rendered its

verdict.

IT IS ORDERED AND ADJUDGED that judgment is

entered in favor of the Defendant, Judge

James J. Krajewski, and against the

D-1

Plaintiff, Lloyd B. Fisher.

It was ORDERED on June 8, 1987 that

Defendant, The Board of Commissioners of

County of Lake be DISMISSED.

It was ORDERED on November 10, 1987

that Defendant, Lake County Council be

DISMISSED.

Date: February 10, 1988

Clerk: Richard E. Timmons

/s/

NOEL HERNANDEZ

Deputy Clerk

APPENDIX E

COURT'S INSTRUCTION NC. 24

Upon retiring to the jury room you

Should first select One of your number to

act as your foreman who will preside Over

your deliberations and will be your

Spokesman here in court. Forms of verdict

have been Prepared for your convenience,

The forms of verdict read as follows:

"We, the jury, find in favor of the

defendant, James J. Krajewski, and against

the plaintiff, Lloyd B. Fisher."

“We, the jury, find in favor of the

Plaintiff, Lloyd B. Fisher, ana against the

defendant, James J. Krajewski, and assess

actual damages in the amount of

Dollars and punitive damages in the amount

of Dollars,"

You will take the verdict forms to the

jury room and when you have reached

E-1

unanimous agreement as to your verdict, you

will have your foreman select, fill in (if

necessary, date, and Sign the appropriate

verdict form and then return to the

courtroom.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.