Nowicki v. Ullsvik, 94-1409

Decision Date29 June 1995
Docket NumberNo. 94-1409,94-1409
Citation69 F.3d 1320
PartiesDavid A. NOWICKI and Daniel E. Pettegrew, Plaintiffs-Appellants, v. Honorable John M. ULLSVIK, Circuit Court Judge, Jefferson County, personally and in his official capacity, and Raymond E. Krek, Attorney, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

David A. Nowicki (submitted), Waukesha, WI, pro se.

James H. McDermott, Asst. Atty. Gen., Wisconsin Department of Justice, Madison, WI, for John M. Ullsvik.

James E. Bartzen, Boardman, Suhr, Curry & Field, Madison, WI, for Raymond E. Krek.

Before CUMMINGS, COFFEY and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Jefferson County, Wisconsin, Circuit Court Judge John Ullsvik issued an order preventing David Nowicki, one of the founders of "Divorced Dads Against Discrimination" ("DDAD"), from representing Daniel Pettegrew, another DDAD member, in state court litigation concerning Pettegrew's prior divorce decree. 1 Raymond Krek, counsel for Pettegrew's ex-wife, objected to Nowicki's participation in the proceedings as a "para-legal" because it constituted practicing law without a license. See Wis. Stat. Sec. 757.30. As a result, Judge Ullsvik issued an order that placed limits on the activities of Pettegrew's assistant. Nowicki claims that Judge Ullsvik and Krek thereby violated his constitutional rights to due process and equal protection, and his rights under the Contracts Clauses of the United States and Wisconsin Constitutions. He also contends that Wis. Stat. Sec. 757.30, which prohibits the practice of law without a license, is unconstitutional. He seeks monetary damages and injunctive and declaratory relief pursuant to 42 U.S.C. Sec. 1983 and 28 U.S.C. Secs. 2201-02.

Our description of the facts derives from Nowicki's complaint. According to Nowicki, some DDAD members provide paralegal services for other members by demystifying and simplifying the law for non-lawyers, assembling cases and documents, preparing motions and otherwise assisting them with their attorneys. Nowicki provides these "para-legal" services to DDAD members such as Pettegrew for $40 per hour. (He states in his appellate brief that he now charges $65 per hour.) Nowicki's services extend to participation in the courtroom. Although he asserts that he "does not represent members, they represent themselves," he petitions the court for leave "to speak on their behalf" if they are inarticulate. (R. 2 at pp 25, 38.) He contends that attorneys often have non-attorney assistants by their side in court, and therefore that his pro se clients should have the right to similar assistance.

In his order, Judge Ullsvik recognized that he had the discretion to permit some lay assistance during the proceedings, but that Pettegrew did not have the right to be represented by a lay person. He allowed Pettegrew to have an assistant under limited conditions to avoid the unlicensed practice of law in his courtroom. 2 These conditions would be enforced on pain of contempt. Nowicki alleges that he now faces incarceration or heavy financial penalties if he charges Pettegrew for his in-court services. He adds that since he could not afford to assist Pettegrew in court for free, the order left Pettegrew without his assistance. As far as this Court knows, Pettegrew's state court litigation continues. The parties have not informed us to the contrary.

The district court abstained from deciding the federal claims for injunctive and declaratory relief against Judge Ullsvik because it did not want to interfere with the ongoing state proceedings, and it dismissed Nowicki's Sec. 1983 claims for monetary damages against Judge Ullsvik on the grounds of immunity. However, the district court chose to hear Nowicki's request for a declaratory judgment that Wis. Stat. Sec. 757.30, which prohibits the practice of law without a license, was unconstitutional. The court dismissed Nowicki's claims concerning the constitutionality of the statute for failing to state a claim. The court then dismissed the federal claims against Attorney Krek because Nowicki's complaint could not be construed to meet the state action requirement of Sec. 1983. Although Nowicki had attempted to cure this defect by amending his complaint to allege a conspiracy between Judge Ullsvik and Krek, the district court denied the amendment. It found that even if Nowicki had properly alleged a conspiracy, he failed to allege one to deprive him of his constitutional rights. With no remaining federal claims, the district court declined to exercise jurisdiction over the pendent state law claim concerning Wisconsin's Contracts Clause. After the court ended the case, Nowicki sought to amend his complaint. This second attempt at amendment was also denied.

With respect to the injunctive and declaratory relief requested against Judge Ullsvik, the district court properly abstained. Hoover v. Wagner, 47 F.3d 845, 850-52 (7th Cir.1995) (affirming denial of non-party's request for declaratory and injunctive relief from state court's injunction). It found that Nowicki, who was not a party to the state court proceeding, had an available remedy through Wisconsin's writ of prohibition. As in Hoover, the district court could decline to grant declaratory and injunctive relief on the grounds of "want of equity." Id. at 852. The issuance of an injunction pursuant to Sec. 1983 against a judge during the course of litigation, perhaps thereby subjecting the judge to criminal contempt as a result, is reserved "for 'really extraordinary causes.' " Id. at 851 (quoting Pulliam v. Allen, 466 U.S. 522, 538, 104 S.Ct. 1970, 1978, 80 L.Ed.2d 565 (1984)). This is not such a case. In light of the principles of equity and comity, the district court did not abuse its discretion by abstaining.

Except to the extent that Nowicki implicitly contended that Judge Ullsvik's order violated his right to equal protection, the district court did not abstain from considerating Nowicki's claims concerning the constitutionality of Sec. 757.30, which prohibits the unlicensed practice of law. Nowicki claims that this statute is both unconstitutionally vague and overbroad and that it violates the rights to equal protection and freedom of association. However, he does not claim that it violates his own constitutional rights, but rather that it violates the rights of the poor, the legally inarticulate and individuals who do not wish to hire an attorney. As this Court pointed out in Nowicki v. Cooper, 56 F.3d 782, 784 (7th Cir.1995), in general, "Nowicki cannot enforce the rights of other people as their representative." The district court found that Nowicki had standing apart from Pettegrew's case because he generally alleged that he commonly provided these services. However, the only instance mentioned in the complaint that constitutes a ripe controversy between the parties is Pettegrew's case, for which Pettegrew was present and able to protect his own rights. One might argue that Pettegrew, as a poor man who was unschooled in law and who wanted to retain an unlicensed legal representative, had standing because he suffered the injuries alleged in this portion of the complaint. "The case-or-controversy requirement of Article III is satisfied if one plaintiff has standing to bring the suit." Doe v. County of Montgomery, Illinois, 41 F.3d 1156, 1161 n. 4 (7th Cir.1994). However, Pettegrew is no longer part of this appeal. Therefore, we now have a single appellant before us claiming the violation of the rights of another. An Article III case or controversy must exist at all the stages of appellate review. United States Bancorp Mortgage Co. v. Bonner Mall Partnership, --- U.S. ----, ----, 115 S.Ct. 386, 389, 130 L.Ed.2d 233 (1994). We therefore decline to review Nowicki's claims that the statute is unconstitutional.

The district court also properly dismissed the claims for monetary damages against Judge Ullsvik pursuant to Sec. 1983. Judicial immunity and the Eleventh Amendment bar such claims against Judge Ullsvik in his personal and official capacities respectively. Nowicki, 56 F.3d at 783-84. Despite Nowicki's contentions to the contrary, the judge was not engaged in a merely ministerial or administrative act. Judge Ullsvik acted in his judicial capacity by issuing an order to prevent, on pain of contempt, a non-attorney from appearing before him to represent a party. 3

Next we consider the remaining claims against attorney Krek. The district court properly found that Nowicki's original complaint failed to allege the requisite state action to support his Sec. 1983 claims against Krek. "[M]erely resorting to the courts and being on the winning side of a lawsuit does not make the party a co-conspirator or a joint actor with the judge." Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). However, on appeal, Nowicki claims that the court below erred by failing to allow him to clear up any defects prior to dismissal. The district court denied the motion to amend, which was filed after the defendants filed their responsive pleadings, on the ground that it "contained nothing more than additional argument in opposition to defendant Krek's motion to dismiss." (R. at 26.) In its final order, the district court explained that the attempt to amend the complaint would have been futile because the additional Sec. 1985 claims also failed.

Amending the complaint would be futile. To the extent that the complaint as amended would still fail to allege a claim pursuant to Sec. 1985(2) and (3), we agree. The amended complaint would allege that the purpose of the conspiracy was motivated for economic and professional purposes. It would therefore fail to meet the somewhat narrower standard of a racial or otherwise class-based invidious discriminatory animus required to state a claim under 42 U.S.C. Sec. 1985(2) (second clause), (3). D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1486 (7th...

To continue reading

Request your trial
34 cases
  • Alarm Detection Sys., Inc. v. Vill. of Schaumburg, Corp.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 15, 2019
    ... ... 2017) ; Khan v. Gallitano , 180 F.3d 829, 832 (7th Cir. 1999) ; see also Nowicki v. Ullsvik , 69 F.3d 1320, 1325 (7th Cir. 1995) (the Clause "is directed against legislative ... ...
  • Hernandez v. Dart
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 10, 2009
    ... ... Nowicki v. Ullsvik, 69 F.3d 1320, 1325 (7th Cir.1995) (explaining that the second clause of § 1985(2) and ... ...
  • Bontkowski v. Smith
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 26, 2002
    ... ... See 28 C.F.R. § 50.15(a); Nowicki v. Ullsvik, 69 F.3d 1320, 1326 (7th Cir. 1995). It would be absurd to require law enforcement ... ...
  • Wilford v. County of Rush, Cause No. IP 02-985-C-T/K (S.D. Ind. 1/7/2003)
    • United States
    • U.S. District Court — Southern District of Indiana
    • January 7, 2003
    ... ... See, e.g., Terpening v. Brett, 222 F. Supp.2d 1135, 1139 (C.D.Ill. 2002), citing Nowicki v. Ullsvik, 69 F.3d 1320, 1324 (7th Cir. 1995) (judicial immunity and the Eleventh Amendment bar ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT