# Petition for Writ of Certiorari — Fisher v. Krajewski > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0379%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1020 ## 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. i. 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 ii Page i 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 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) iv PAGE 16 26 16 21 21 21 24 26 16 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 21 29 16 29 15 16 14 14, 15 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 ) vi 4, 12, 19 6, 12, 13 14, 19 12, 17 18 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 2. _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. 4. (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. De 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 6. 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 7. (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 8. 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 9. 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. ES 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: (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 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. ee (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. Ol 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 W rt reference by Plaintiff's counsel was no sufficient as an objection or request modification of Court Instruction No. 24, j ct 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, v. 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 : : j 4 3 : J 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 Ve 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. pO ee ee ee a © aa i eT a en Ss - aloe = 2. =a | a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0379%3A1. Public record. Not legal advice.