Petition for Writ of Certiorari — Nowicki v. Cooper

Supreme Court, U,8.

FILED

95 660 AUG 30 199

QFFICE OF THE CLERK

No.

In The

Supreme Court of The United States

October Term , 1995

No.

David A. Nowicki,

Petitioner,

Vv

Ms. Lucy Cooper,

Respondent.

Petition for a Writ of Certiorari

from the United States Court of Appeals

for the Seventh Circuit.

Petition for Writ of Certiorari

David A. Nowicki

2000 Capella Ct.

Waukesha, WI 53186

414-521-9162

Questions Presented

1. Does a family court commissioner have personal liability

for damages to the paralegal she prevented from earning a

living by providing paralegal s“rvices for an attorney during

a hearing?

The Seventh Circuit Court of Appeals, Chief Judge Posner

and Circuit Judges Fairchild and Kanne say no!

2. Does a family court commissioner have personal liability

for damages to the paralegal she prevented from earning a

living by providing paralegal services to a fellow member of

a civil rights organization ( Divorced Dads Against

Discrimination ) during a hearing?

The Seventh Circuit Court of Appeals, Chief Judge Posner

and Circuit Court Judges Fairchild and Kanne say no!

3. Is the refusal of the family court commissioner to permit

a paralegal that was hired to work on the case with the

attorney that is representing the client a ministerial act or a

judicial act?

The Seventh Circuit Court of Appeals, Chief Judge Posner

and Circuit Court Judges Fairchild and Kanne say it is a

judicial act and not ministerial, therefore, the court

commissioner has absolute immunity!

ii )

Parties to the Proceedings

1. The Plaintiff-Appellant, David A. Nowicki, is a resident

of the State of Wisconsin.

2. The Defendant-Appellee, Ms Lucy Cooper, is a resident of

Milwaukee County.

SN ITA PUTIN Lyre Deere

iii

Table of Contents

Questions presented for review

Parties to the Proceedings

Table of Contents

Table of Authorities

Wisconsin Statutes

Opinions Below

Jurisdiction

Federal Constitutional Authority involved

Statement of the Case

Question # 1

Question # 2

Question # 3

Conclusion

Appendix

ii

10

12

iv

Table of Authorities

Allen v. US.,

C.A.6 (Ky.) 1990, 921 F.2d 78, certiorari denied

111 S.Ct. 2896, 115 L.Ed.2d 1061 9

Aldabe v. Aldabe, C.A. 9 (Cal.) 1980, 616 F.2d 1089 7

Bense v. Starling, C.A.

111.1983, 719 F.2d 241 7

Burbank v. Warden. Illinois State Penitenti

C.A.IIl. 1976, 535 F.2d 361, certiorari denied

97 S.Ct. 750, 429 U.S. 1046, 50 L.Ed.2d 758, rehearing

denied 97 S.Ct. 1187, 430 U.S. 911,51 L.Ed.2d589 9

etait Sli bate Mess Unified

School Dist,, D.C.Cal.1971, 333 F.Supp. 436 9

Chase Manhattan Bank, N.A. v. Celotex Corp..

S.D.N.Y.1994, 852 F.Supp. 226 8

Clark v. Campbell, D.C.Ark.1981, 514 F.Supp. 1300 10

Clark v Sierra, M.D. Fla.1993, 837 F.Supp. 1179 6

Curry v. Carr, Tex.Cr.App. 1992, 847 S.W.2d 561 7

Doe v, Lake County, Indiana, D.C.Ind.1975,

399 F.Supp. 553 9, 8, 6, 10

Ex parte Steele, D.C.Ala.1908, 162 F. 694, 8

eT ee

Vv

20AmBankr.Rep. 446. See, also, In re Ward,

C.C.A.N.J.1912, 194 F. 89; In re King,

C.C.A.IIl. 1910, 179 F. 694

Ex parte Virginia, Va.1879, 100 U.S. 339,

10 Otto. 339, 25 L.Ed. 676, 8, 10

Forrester v White 108 S. Ct. 538, 543-545 6, 10

Harris v. Harvey, C.A. 7 (Wis.) 1979, 605 F.2d 330,

certiorari denied 100 S.Ct. 1331, 445 U.S. 938,

63 L.Ed.2d 772 %

Havemeyer v lowa County, Wis. 1865, 70 U.S. 294,

3 wall 294, 18 L.Ed. 38. 7

In re Baldinger, D.C.Cal.1973, 356 F.Supp. 153. See,

also, Matter of Doe, D.C.Mich.1976, 410 F.Supp. 1163 8

In re King, C.C.A.I1.1910, 179 F. 694, 4

Inre Prines, C.A.8 (S.D.) 1989, 867 F.2d 478 9

Inre Ward, C.C.A.N.J.1912, 194 F. 89; 8

Laralls Shichusidinn lac V_Ag Health Cla

C.A5 (Miss.) 1994, 17 F.3d 130 9

Jackson Sawmill Co, Inc. v U.S., D.C. Mo. 1977, 428

F.Supp, 555 Affirmed 580 F.2d 302, cert., denied 99S.Ct.

839, 439 U.S. 1070, 59 L_Ed.2d 35.

Leonhard v. U.S., C.A.N.Y.1980, 633 F.2d 599, certiorari

denied 101 S.Ct. 1975, 451 U.S. 908, 68 L.Ed.2d 295 vy)

vi

Matter of Doe, D.C.Mich. 1976, 410 F.Supp. 1163 8

Meeropol v. Nizer, N.Y.1977, 97 S.Ct. 687,

429 U.S. 1337, 50 L.Ed.2d 729

Merced Rosa v. Herrero, C.A.1 (Puerto Rico) 1970,

423 F.2d 591

Morison v. Olson, Dist

.Col.1988, 108 S.Ct. 2597, 487 U.S. 654, 101 L.Ed.2d

569, on remand 857 F.2d 801, 273 U.S.App.D.C. 10

Parmacher vy. Mount, C.A.OkI.1953, 207 F.2d 788,

certiorari denied 74 S.Ct. 515, 347 U.S. 917, 98 L.Ed.

1073, rehearing denied 74 S.Ct. 626, 347 U.S. 940, 98

L.Ed. 1089

People v. Gonzalez, 1990, 800 P.2d 1159, 51 C.3d1179,

275Cal.Rptr. 729, certiorari denied 112 S.Ct. 117,

502 U.S. 835, 116 L.Ed.2d 85

Quarles v. U.S., D.C.App.1975, 349 A.2d 690, certiorari

denied 965 S.Ct. 2169, 425 U.S. 972, 48 L.Ed.2d 795

State v. Sullivan, C.C.N.C. 1982, 50 F. 593

Tower Plaza Investments Lid. V DeWitt, 1973, 508 P.2d

324, 109 Ariz. 248, appeal dismissed 94 S.Ct. 853, 414

U.S.1118, 38 L.Ed2d 746.

US. v. Cortese, D.C.Pa.1976, 410 F.Supp. 1380,

affirmed 540 F.2d 640

ET

9

7

a ANN eh a rr

Vii

US. v. Harrington, C.A.Ind. 1974, 504 F.2d 130 8

US. v. Lewva, C.A.Tex.1975, 513 F.2d 774 8

US. v. Reed, CGCMR 1978, 4 MJ. 869,

decision reviewed 6 M.J. 860 3

US. v. Ursillo, C.A.2 (N.Y.) 1986, 786 F.2d 66 8

FEDERAL AUTHORITY

Art. 1, Sec. 10, Cl.1 of the U.S. Constitution 6

WISCONSIN STATUTES

Wis. Statute 767.081 2

In The

Supreme Court of The United States

October Term , 1995

No.

David A. Nowicki, in pro per

a non attorney

Petitioner,

v

Ms. Lucy Cooper,

Respondent.

Petition for a Writ of Certiorari

from the United States Court of Appeals

for the Seventh Circuit.

Petitioner for Writ of Certiorari

Opinions Below

The final opinion of the Seventh Circuit Court of

Appeals was decided by Chief Judge Posner and Circuit

Judges, Fairchild & Kanne. The decision of the district court

was reversed in part and remanded. The matter was

submitted on 4-21-95 and decided on 6-1-95. A copy of the

decision is attached in the appendix marked as App. 1 pp.1-5.

Jurisdiction

An opinion of the United states Court of Appeals for

the Seventh circuit was rendered on 6-1-95.

This Petition for a Writ of Certiorari is being filed

pursuant to Rule 13.1 & 13.4 of the Rules of the United States

supreme Court.

This court has jurisdiction over this proceeding

pursuant to 28 USC 1254 and United States Supreme Court

Rules 10.1

Statement of the Case

The plaintiff, David A. Nowicki, a non-lawyer, in

proper person and is one of the co-founders and current

manager of the Divorced Dads’ Organization. He is a notary

public, paralegal and is also listed as a community service

provider by the Family Court Commissioner’s publications in

Waukesha County. The plaintiff is paid a $40 hourly fee for

the services he provides to fellow members. Women’s

organizations throughout the State of Wisconsin provide the

same services that Nowicki provides, however, they are paid

a flat fees for their services.

The defendant, Ms Lucy Cooper, is a lawyer that has

been hired to serve as an assistant family court commissioner

for the Milwaukee County Court system. She is salaried.

The principle parties in the underlying state case are

fellow members of the Dads’ Organization, Randy Weishar

and Richard Grabczyk. The attorney that represented Randy

2

Weishar in Milwaukee County is Frank J. Schiro. Richard

Grabczyk’s case is still pending and will be pending for

several more years. Randy Weishar’s cases is still pending in

Milwaukee County and will be for the next ten years.

It is the plaintiff's chosen profession to provide

paralegal services to fellow members of the Dad’s

organization for their litigation teams and as a community

service provider pursuant to Wis. Stats. 767.081.

It is the custom, practice and policy of the defendant

commissioner and all judges and commissioners, presently

and in the past sitting judges and court commissioners to

permit lawyers to have second attorneys, paralegals, law

clerks, secretaries and any other assistant they want at counsel

table.

It is also the custom practice and policy of the

defendant, all other commissioners and judges, both past and

present, to permit court reporters to tape record the

proceedings in addition to typing with their stenographic

equipment.

The defendant denied the plaintiff from making a

audio record during the Grabczyk hearing and stated, "I have

a standing policy of not permitting anyone to tape record in

my court room".

It has been the standing policy of defendant to deny

litigants, represented or not, a paralegal, secretarial assistant

and notary audio recording services in her non record hearing

room. Based upon the defendant's standing policy, the

plaintiff was not able to provide the services he was hired for.

IEE

3

The acts of the defendant, Lucy Cooper, are

ministerial and not judicial. Her acts have nothing to do with

the facts and merits of the underlying family taw case.

Nowicki, Weishar & Grabczyk are members of a

class of poor and a class of fathers/men that cannot escape

their financial and familial responsibilities of the family court

system.

The plaintiff was hired by Randy Weishar to work on

his litigation team with Attorney Frank Schiro. He was to

provide paralegal services, moral support and make a private

audio record of the proceedings before the defendant, Ms.

Lucy Cooper. Without any provocation or facts to justify her

action, Ms. Cooper barred Nowicki from the spacious 20

passenger hearing room. It was explained to her, by Attorney

Schiro, that the plaintiff was hired to provide paralegal

services and to make a private audio record of the

proceedings. The hearings are not recorded by a court

reporter. During the next 14 months, Ms. Cooper repeatedly

denied the plaintiff Nowicki access to the hearing room

whenever the Weishar case was being heard.

On the Richard Grabczyk case, the plaintiff was hired

by the unrepresented non-attorney fellow member father to

provide moral support, make a private audio record of the

proceedings and to serve him in the capacity of a secretary.

The family court commissioner’s hearing are not recorded

hearings. In this case, Ms. Cooper would not let the Plaintiff

do anything except sit quietly in the chair against the wall far

from Richard Grabczyk. Mr Grabczyk objected and the

defendant ignored his objections.

The plaintiff lost part of his fees on both of the above

4

mentioned cases. Neither party will hire tiim anymore and

they will not recommend his services to any other father that

is facing the family court system. The plaintiff's reputation

is ruined and his future income from these fathers and their

referrals is finished.

The plaintiff filed an action for supervisory relief in

the Wisconsin Appellate Court system, case no. 93-171 W

State ex rel. Nowicki v Lucy Cooper, Assistant Family Court

Commissioner, et al. On 7-9-93, the appeal for a supervisory

relief was dismissed and the court stated Nowicki had no

standing to bring the action to the Court of Appeals.

On 7-27-93, the plaintiff filed a 42 USC 1983 civil

rights action seeking declaratory relief, injunctive relief and

damages against the defendant personally and in her official

capacity. The plaintiff's claim stated Ms Cooper had no

immunity due to the fact her actions were ministerial.

On 7-28-93, the eastern district federal court Judge

Thomas J. Curran, within 24 hours after the filing of the case

and without any hearing, dismissed the plaintiff's case. Judge

Curran stated the defendant had absolute immunity and no

damages could be sought against her. In the plaintiff's

pleadings, he raised the issue of his right to contract which is

protected in the federal and state constitution, pursuant to Art.

1, Sec. 10, Cl. 1 of the U. S. Constitution, to enter into a

contract. He raised the issue of the deprivation of his right to

chose a field of employment which is protected by the

“Liberty and Property” concept of the Sth and 14th

Amendments of the United States Constitution. The plaintiff

further alleged a cause of action under the 14th Amendment

for the egregious discrimination by Ms. Lucy Cooper. She

will permit an attorney to bring in any paralegal they want to

5

assist them at any time. She will also, as a matter of policy,

permit a private stenographer to make a record of the

proceedings. The plaintiff also included a cause of action

which stated that a court room is public and the defendant

cannot hold secret hearings. For relief, the plaintiff sought

declaratory & injunctive relief barring the defendant’s

conduct in the future and he sought damages against the

defendant, personally and in her official capacity. Judge

Thomas J. Curran dismissed the case.

On 10-12-93, the plaintiff filed an appeal in the

Seventh Circuit Court of Appeals seeking to reverse the

districts court’s decision. The plaintiff maintained that he

was not an attorney and regardless how unartfully his

complaint was drafted, the district court had the duty to most

liberally construe the pleading of a pro se litigant. In his

brief, the plaintiff raised the issue of a wrongfully dismissed

pro se complaint, failure to grant a hearing prior to dismissal,

the federal questions raised by the plaintiff and his right t

contract his services.

On 6-1-95, the Seventh Circuit dismissed the plaintiff

causes of action for damamges against the defendant stating

she had immunity and no damages could be obtained. The

court remanded the balance of the issues to the district court

for further proceedings.

It is from the 6-1-95 decision that the plaintiff appeals

to the United States Supreme Court for a Writ of Certiorari.

Argument on Immunity

To make a determination as to whether a judge or a

6

court commissioner has judicial immunity or not requires a

two part test. Judges do not have absolute immunity for

ministerial acts. They do have absolute immunity if they

have jurisdiction and their act is judicial.

The application of the doctrine of absolute immunity

is restricted to the following areas: (1) immunity applies only

when judges are faced with suits involving their judicial as

opposed to their ministerial or administrative duties, and (2)

immunity applies only when officials are sued for damages,

see Forrester v White 108 S. Ct. 538, 543-545 & Doe v Lake

County . Indiana, D.C. Ind. 1975, 399 F.Supp.553

To determine if a state court judge is entitled to

judicial immunity in a civil rights action, the district court

must apply two-part test inquiring as to whether judge’s

actions were made while acting in his judicial capacity, and,

if so, whether or not judge’s actions fall clearly outside

judge’s jurisdiction as Florida circuit court judge; if both

parts of test are met, judge is absolutely immune from

liability under Civil Rights Act. Clark v Sierra, M.D.

Fla. 1993, 837 F.Supp. 1179

Argument regarding liability when Court

Commissioner violates the rights of an individual

The plaintiff was engaged in perfectly lawful conduct

when the defendant denied him the right to make a living.

The plaintiff had engaged in a lawful contract to provide

services to the fellow members. That right to contract is

protected under the United States Constitution Art. 1, Sec 10,

Cl 1. This clause is only a limitation of state powers, no

cause of action based on this theory lies against the United

States government. If a contract, when made, was valid by

7

the constitution and laws of the state, as then expounded by

the highest authorities whose duties it was to administer them,

no subsequent action by the legislature or judiciary can

impair it obligation. Havemeyer v lowa County, Wis. 1865,

70 U.S. 294, 3 wall 294, 18 L.Ed. 38. A contract is “impaired

when a party is deprived of benefit of his contract by law.

Tower Plaza Investments Lid. V DeWitt, 1973, 508 P.2d 324,

109 Ariz. 248, appeal dismissed 94 S.Ct. 853, 414 U.S.1118,

38 L.Ed2d 746.

In Aldabe v. Aldabe, C.A. 9 (Cal.) 1980, 616 F.2d

1089, the court said, when a judge violates a litigants rights,

that act is not judicial and they lose their immunity.

omar

Be yo sicial A

In the following cases the courts have made decisions

which describe ministerial act:

In State v. Sullivan, C.C.N.C. 1982, 50 F. 593, the

court said, Congress has imposed ministerial duties upon

judges. In Quarles v. ULS.. D.C.App.1975, 349 A.2d 690,

certiorari denied 965 S.Ct. 2169, 425 U.S. 972, 48 L.Ed.2d

795, the court said, some communications between the court

and the jury are ministerial. In, Bense v. Starling,

C.A_II. 1983, 719 F.2d 241, the court said, when no parties

are involved in a motion, the motion is a ministerial act. In

Curry v. Carr, Tex.Cr.App.1992, 847 S.W.2d 561, the court

said, a duty to conduct a jury trial is a ministerial act. In

People v. Gonzalez, 1990, 800 P.2d 1159, 51 C.3d1179,

275Cal.Rptr. 729, certiorari denied 112 S.Ct. 117, 502 U.S.

835, 116 L.Ed.2d 85, the court said, a temporary replacement

judge’s acts were ministerial. In US. v. Reed, CGCMR

1978, 4 M.J. 869, decision reviewed 6 M.J. 860, the court

said, referral of a case by a judge was a ministerial act. In

Doe v, Lake County, Indiana, D.C.Ind. 1975, 399 F.Supp. 553

the court said, immunity does not apply to ministerial acts.

In Chase Manhattan Bank, N.A.v. Celotex Corp..

S.D.N.Y.1994, 852 F.Supp. 226, the court said, entry of a

judgement by a clerk is a ministerial act. In Ex parte Steele,

D.C. Ala. 1908, 162 F. 694, 20 AmBankr.Rep. 446. See, also,

In re Ward, C.C.A.N.J.1912, 194 F. 89; In re King.

C.C.A.I11.1910, 179 F. 694, the court sa‘, *:dges can not

pass a judicial duty to a ministerial offices In Ex parte

Virginia, Va.1879, 100 U.S. 339, 10 Otto. 339, 25 L.Ed. 676,

the court said, selection of jurors is a ministerial act and not

judicial. In Harris v. Harvey, C.A. 7 (Wis.) 1979, 605 F.2d

330, certiorari denied 100 S.Ct. 1331, 445 U.S. 938, 63

L.Ed.2d 772, the court said, acts by a judge outside of his

courtroom and not judicial are ministerial acts. In UWS.v.

Leyva, C.A.Tex.1975, 513 F.2d 774, the court said, when

granting immunity, the act is ministerial. In re Baldinger,

D.C.Cal. 1973, 356 F.Supp. 153. See, also, Matter of Doe,

D.C. Mich. 1976, 410 F.Supp. 1163, the court said, in granting

immunity the act is ministerial and not judicial, except when

a judge is protecting the rights of the witness. In U.S. v.

Ursillo, C.A.2 (N.Y.) 1986, 786 F.2d 66, the court said, the

failure to attach a transcript the act is ministerial. In U.S. v.

Harrington, C.A.Ind.1974, 504 F.2d 130, the court said,

failure to attach paperwork is ministerial. In Pamacher v.

Mount, C.A.OkI.1953, 207 F.2d 788, certiorari denied 74

S.Ct. 515, 347 U.S. 917, 98 L.Ed. 1073, rehearing denied 74

S.Ct. 626, 347 U.S. 940, 98 L.Ed. 1089, the court said, a

decision of the Oklahoma Supreme Court referring to lower

court’s decision not binding upon the other courts in a

9

ministerial act. In U.S. v. Cortese, D.C.Pa.1976, 410 F.Supp.

1380, affirmed 540 F.2d 640, the court said, when a clerk

has a duty to perform a certain task, their act is ministerial.

In re Prines, C.A.8 (S.D.) 1989, 867 F.2d 478, the court said,

the calculation of fees which are clearly defined by statute is

a ministerial act. In Meeropol v. Nizer, N.Y.1977, 97 S.Ct.

687, 429 U.S. 1337, 50 L.Ed.2d 729, the court said, the acts

of a chief judge is purely ministerial. In Morrison v. Olson,

Dist.Col.1988, 108 S.Ct. 2597, 487 U.S. 654, 101 L.Ed.2d

569, on remand 857 F.2d 801, 273 U.S.App.D.C. 10, the

court said, misc. Functions are ministerial. In Allen v. U.S.,

C.A.6 (Ky.) 1990, 921 F.2d 78, certiorari denied 111 S.Ct.

2896, 115 L.Ed.2d 1061, the court said, the reading of a

judges instructions by a magistrate was a ministerial act. In

Merced Rosa v. Herrero, C.A.1 (Puerto Rico) 1970, 423 F.2d

591, the court said, once a formal request has been made, a

chief judges duties are ministerial. In California Teachers

Ass’n v. Newport Mesa unified School Dist., D.C.Cal.1971,

333 F.Supp. 436, the court said, once a specific request has

been made, a chief judge’s duties are ministerial. In

Leonhard yv. ULS., C.A.N.Y.1980, 633 F.2d 599, certiorari

denied 101 S.Ct. 1975, 451 U.S. 908, 68 L.Ed.2d 295, the

court said, entering a correction of an error in an adjudicated

decision is a ministeial act.

In Burbank v. Warden, Illinois State Penitentiary,

C.A.I11.1976, 535 F.2d 361, certiorari denied 97 S.Ct. 750,

429 U.S. 1046, 50 L.Ed.2d 758, rehearing denied 97 S.Ct.

1187, 430 U.S. 911, 51 L.Ed.2d 589a.,, the court said,

enforcement of a final judgement is a ministerial act. In

Ingalls Shipbuilding, Inc. V. Asbestos Health Claimants,

C.A.5 (Miss.) 1994, 17 F.3d 130, the court said, when a

director has a clear duty to transfer a case to a judge is a

ministerial act. In Doe v. Lake County, Indiana,

D.C.Ind.1975, 399 F.Supp. 553, the court said, there is no

i iid

10

immunity for ministerial acts. In Clark vy. Campbell,

D.C.Ark.1981, 514 F.Supp. 1300, the court said, there is no

immunity for ministerial duties. In Doe vy. Lake County,

Indiana, D.C.Ind.1975, 399 F.Supp. 553, the court said,

immunity only applies in judicial acts.

The thought process is simple, whenever a judge has

to use his or her discretion to reach a decision with regards to

the facts of the case, it is a judicial act. However, when the

act requires no discretion, the act is ministerial and there is no )

immunity. |

In Forester vy White, 108 S.Ct. 538, 543-545 (1988)

Judge Posner was being overly protective of all judges. If :

his philosophy were permitted to exist in the entire court .

system, not only would judges be able to fire personnel at will |

with out any justification whatsoever, they would be able to

determine who would be able to make a living in the court

system. The acts of the court commissioner in denying the

plaintiff a right to make a living, without any justification

whatsoever are no different the acts of the county judge in Ex

Parte Virginia, 100 U.S. (10 Otto) 339 where the court

declined to extend immunity to a county judge for his

discriminatory racial jury selection process. If the

commissioner is permitted to escape responsibility for her

acts, this case will serve a wake up call for any judge or court

commissioner to prevent any attorney, court reporter,

paralegal or any other court personnel to know that they best

never offend any judge or court commissioner for the

consequence will mean denial of access and the termination

of their ability to make a living in that court. This would lead 1

to a total breakdown of the judicial system.

. *

ry ee ~~

Conclusion.

1]

It is for all of the above mentioned facts and

arguments that the plaintiff requests this court to rule in his

favor. The specific relief being requested is to find that Chief

Judge Posner and his distinguished colleagues, Circuit Court

Judges Fairchild & Kanne, are in error. To further find that

the family court commissioner is without immunity and,

additionally, to find that the court commissioner is liable for

damages. A full reversal of Judge Posner’s decision is

appropriate and justice requires it.

Dated at Waukesha Wisconsin this 29th day of August, 1995.

David A. Nowicki

2000 Capella Ct.

Waukesha, WI 53186

414-521-9162 off

eT

12

APPENDIX

App |

Index to Appendix

Wis. Statute 767.081

App-2

Opinion of the United States Circuit

Court of Appeals dated 6-1-95

App-3

Order of the district Court dated

dated July 29, 1993

App-4

App 2

Wisconsin Statutes 767.081.

Information from family court commissioner

(1) Upon the filing of an action affecting the family,

the family court commissioner shall inform the parties of any

services, including referral services, offered by the family

court commissioner and by the director of family court

counseling services under Sec. 767.11.

(2) Upon request of a party to an action affecting the

family, including a revision of judgment or order under Sec.

767.32 or 767.325:

(a) The family court commissioner shall, with or

without charge, provide the party with written information on

the following, as appropriate to the action commenced:

1. The procedure for obtaining a judgment or order in

the action.

2. The major issues usually addressed in such an

action.

3. Community resources and family court counseling

services available to assist the parties.

4. The procedure for setting, modifying and enforcing

child support awards or modifying and enforcing legal

custody or physical placement judgments or orders.

(b) The family court commissioner shall provide a

party, for inspection or purchase, with a copy of the statutory

provisions in this chapter generally pertinent to the action.

United States Court of Appeals

For the Seventh Circuit

No. 93-3100

Davip A. NowICKI,

Plaintiff-Appellant,

Vv.

Lucy Cooper, Assistant Family Court Commissioner,

Milwaukee County, both personally and in her

official capacity,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98 C 779—Thomas J. Curran, Judge.

SupmrTTeD APRIL 21, 1995—Decipep June 1, 1995

Before Posner, Chief Judge, and FAIRCHILD and KANNE,

Circuit Judges.

PosNnER, Chief Judge. A Wisconsin family-court judge,

as authorized by Wisconsin law, Wis. Stat. §§ 757.70,

767.1%2); Forsythe v. Family Court Commissioner, 388

N.W.2d 580 (Wis. 1986), refused to David Nowicki

to attend or tape record two hearings before her

Midwest National Bank, 874 F.2d 1177, 1183-85 (7th Cir.

1989), was harmless, since no amendment to the complaint

could a ies « infirmi a bene of

against judge. Her act of whi owicki complains

judicial, and judges yg

or

the ity of her empl m4 State of

er, the fr)

isconsin. v. Michigan 4% of “Sate Police, 491

S. 58, 70-71 (1989); Wisconsin ital Ass'n v. Reivitz,

820 F.2d 868, 867 (7th Cir. 1987). is authority that

a paid case cannot be dismissed, no matter how manifestly

ore summons is issued. E.g., Butler v.

8d 772 (9th Cir. 1998) (per curiam). We don’t

see why, Wartman v. 7, 510 F.2d 130, 134

th Cir. 1975) (concurring ), but will not pursue

the question since a summons did issue.

of the suit is more p The only facts we have

to go on are those alleged in the com t.. Acco

to Mr. Nowicki is a and a founder an

member of an called “Divorced Dads Against

Discrimination (DDAD),” which seeks to the rights

of fathers. When retained in his as a paralegal

App 2-2

No. 93-3100 3

ir custody disputes. By excluding Nowicki from their

vices he contracted to render Weishar and Grab-

czyk. The co ence was to impose a financial loss on

Nowicki and to deprive Weishar and Grabczyk of assist-

ance they need in order to revail in their custody dis-

putes with their ex-wives. We do not know the status of

the custody proceedings. Although Nowicki brought this

suit two years ago and the Wcishar and Grabezyk custody

ings had begun at least a year earlier, a custody

Battle can continue until a child reaches adulthood. For

all we know, the proceedings involving Nowicki’s clients

are still going on. :

Insofar as the suit seeks relief on their behalf, it is plain-

ly improper. Even if the exclusion of Nowicki somehow

infri a federal right of either of his clients, Nowicki

cannot enforce the rights of es as their repre-

sentative. Lugan v. Defenders of afe, 112 S. Ct. 2130,

2137-38 (1992); Valley Forge Christian College v. Amer-

icans United for Separation of Church & State, Inc., 454

U.S. 464, 474 (1982); United ex rel. Mosay v. Buf-

falo Brothers Management, Inc., 20 F.3d 739, 742 (7th

Cir. 1994). And if the Rooker-Feldman doctrine applies

to interlocutory rulings—an unsettled ion, Hoover v.

Wagner, 47 F.3d 845, 849 (7th Cir. he cannot ask

a lower federal court to review the ruling of a state court.

Rooker v. Fidelity Trust Co., 268 U.S. 413 (1923); District

Yi v. Harris, 401 US. (1971); Moore v. Sims,

442 'S. 415, 423 (1979); Brunken v. Lance, 807 F.2d 1325,

1380 (7th Cir. 1986). But, so far as , it is not a

party. Conceivabl , the suit might also be barred by the

doctrine of f abstention in domestic relations cases,

which although traditi a limitation of the federal

diversity jurisdiction, A v. Richards, 112 S. Ct.

App 3 - 'f

4d No. 93-3100

2206 (1992), was interpreted in Allen v. Allen, supra, 48

F.3d at 261-62, as a general bar to federal courts’ adjudi-

cating divorce, alimony, and custody proceedings. But

Lynk v. LaPorte Superior Court No. 2, F.2d 554, 558

(7th Cir. 1986), which Allen did not cite, had taken a con-

trary view.

None of the principles that we have mentioned thus far

is a bar to Nowicki’s suit insofar as he seeks admittance

to custody hearings for personal financial gain. In that

respect the suit is no different from a suit by a news-

paper to be allowed, on First Amendment grounds, into

a closed judicial hearing. Such suits are commonplace. See,

e:g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1

(1986); Globe Newspaper Co. v. Rastior Court, 457 U.S.

596 (1982); United States v. A.D., 28 F.3d 1353 (3d Cir.

1994). And even if the custody hearings involving Nowicki’s

clients are over with (which we do not know), the suit is

not moot, because he anticipates further occasions on which

he will want to participate in a custody hearing. He

alleges that the judge’s policy is to close custody hear-

ings to the extent allowed by Wisconsin law. If that is

indeed her policy she will exclude him on all future occa-

sions.

It remains unclear just how his federal rights might

have been violated by the state judge’s action. Suppose

an expert witness were excluded by a state judge on

state-law grounds from testifying in a case and as a result

lost a fee and antici losing more fees in future cases

before this judge. The witness might have some remedy

under state law—in fact Nowicki could have sought, and

for all we know may still be able to seek, a writ of pro-

tee Wi "tat. $87 731.01 1 0g. ner eae ae

see Wis. Stat. .O1 et seq.; ex rel. Newspapers,

Ine. v. Circuit Court, 221 ‘Nw2d 894, 897 (Wis. 1971);

State ex rel. Storer Broadcasting Co. v. Gorenstein, 388

N.W.2d 633, 635-36 (Wis. . 1986)—but what federal

right of the witness’s woul ve been violated?

App 2-5

No. 93-3100 5

There are two possibilities, both of which are at least

implicit in the complaint. One is that the judge’s policy

(as distinct from an ad hoe ruling in a particular case) ar-

bitrarily deprives Nowicki of his liberty to pursue his

tion as a paralegal, in violation of the due process

clause of the Fourteenth Amendment. Board of Regents

v. Roth, 408 U.S. 564, 572-74 (1972); Bernard v. United

Township High School District No. 30, 5 F.3d 1090, 1092

(7th Cir. 1993); Bigby v. City of wae 766 F.2d 1053,

1059 (7th Cir. 1985). The secon ibility, which relates

more to Nowicki’s role in DDAD than to his occupation

as a egal, is that the policy deprives him of the

limited right (to which we have already alluded), held im-

plicit in the First Amendment, to observe trials. Besides

the cases cited earlier, see Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 580 and n. 17 (1980); Grove

Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d

893, 897 (7th Cir. 1994); In re Continental Illinois Securi-

ties Litigation, 732 F.2d 1302, 1308-09 (7th Cir. 1984).

The first of these theories is highly dubious. Not only

is the regulation of proceedings in state court the business

of the states unless a challenged tion contravenes

a particular federal right. But also Nowicki’s business—

the rendering of “paralegal” services directly to clients

rather than to lawyers—looks like nothing so much as the

unauthorized practice of law. One Wisconsin judge has

characterized Nowicki’s activity in just those terms, pre-

cipitating another suit, Nowicki v. Ullsvick, No. 94-1409

in this court, where his appeal from the dismissal of that

suit is pending. Nowicki’s second theory has no obvious

infirmity, however, and so his suit is not frivolous, ex-

cept in the respects discussed at the beginning of this

opinion. Dismissal of the suit in its entirety was therefore

remature. Neitzke v. Williams, 490 U.S. 319, 327 n. 6

1989); Gammon v. GC Services Limited agai 5 27

F.3d 1254 (7th Cir. 1994); Crowley Cutlery Co. v. United

States, 849 F.2d 273, 276 (7th Cir. 1988).

AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.

APP 3-6

6 No. 93-3100

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—6-1-95

App ly -|

United States District Court

Eastern District of Wisconsin

Case No. 93-C-779

David A. Nowicki,

Plaintiff,

Vv.

Lucy Cooper,

Defendant.

ORDER

David A. Nowicki, who claims to be a “notary public

and independent paralegal,” has brought this action

against a Milwaukee County (Wisconsin) Family

Court Commissioner for violating his civil rights by

not allowing him to tape record domestic relations

hearings involving nonparties to this case.

He seeks monetary and injunctive relief from the

Commissioner in her individual and official capacities

pursuant to 42 U.S.C. & 1983.

Having reviewed the complaint, the court dismisses all

claims against the Defendant in her personal capacity.

SS

App 4-2

Court commissioners are judicial officers who exercise

discretion when carrying out their official duties, and,

as such, are absolutely immune from suits for money

damages based upon actions taken while conducting

judicial hearings. See erally Stump _v.

Sparkman,435 U.S. 349 (1978). See also Antoine

v. Byers & Anderson, Inc., 113 S. Ct. 2167 (1993).

Nowicki is also asking this court to grant prospective

declaratory and injunctive relief which would, in effect,

overturn the court commissioner's rulings. The

Plaintiff alleges that his alleged constitutional injuries

occurred within the context of state proceedings which

are ongoing. Therefore, on principles of comity and

in the absence of any allegation that state procedures

are inadequate, this court will abstain from hearing

Nowicki’s claims for declaratory and injunctive relief.

See Pennzoil Company v. Texaco, Inc., 481 U.S. 1,

17 (1986).

For these reasons, the court ORDERS that this

action is dismissed.

IT IS FURTHER ORDERED that, pursuant to

Federal Rule of Civil Procedure 58, the Clerk of

Court shall enter a Final Judgement of dismissal as a

separate document.

App 4-3

Done and Ordered in Chambers at the United

States Courthouse, Milwaukee, Wisconsin this 29th

Day of July, 1993.

Thomas J. Curran

United States District Judge