Fisher v. Krajewski, 88-1827

• Decision Date: 13 June 1989
• Docket Number: No. 88-1827,88-1827
• Citation: 873 F.2d 1057
• Parties: Lloyd B. FISHER, Plaintiff-Appellant, v. Judge James J. KRAJEWSKI, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1057

873 F.2d 1057

Lloyd B. FISHER, Plaintiff-Appellant, v. Judge James J. KRAJEWSKI, Defendant-Appellee.

No. 88-1827.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1988.

Decided May 2, 1989.

Rehearing and Rehearing In Banc Denied June 13, 1989.

MacArthur Drake, Gary, Ind., for plaintiff-appellant.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for defendant-appellee.

Before CUMMINGS, COFFEY, and MANION, Circuit Judges.

COFFEY, 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. Sec. 1983. Fisher appeals the jury verdict and the denial of his motion for a new trial. We affirm.

In June 1985 the defendant/appellee Krajewski, a Republican, was appointed to fill a vacancy in the Lake County (Indiana) Court, Division III, after the resignation of Judge Orval W. Anderson, a Democrat. On or about December 12, 1985, Judge Krajewski informed Lake County assistant public defenders Steve Kurowski, Dave Nicholls and Lloyd Fisher, all of whom were Democratic appointees of Anderson, that they would be terminated effective January 1, 1986.

Subsequent to their termination Kurowski and Nicholls filed suit against Judge Krajewski in the United States District Court for the Northern District of Indiana, contending their discharge was politically motivated in violation of their first amendment right to freedom of speech. Lloyd Fisher, the plaintiff/appellant in this action, did not join in that suit. ¹

The parties in Krajewski I consented to a final disposition before a magistrate pursuant to 28 U.S.C. Sec. 636(c). Magistrate Andrew P. Rodovich presided over the trial dealing with the question of whether Judge Krajewski terminated Kurowski and Nicholls because of their politics, and ruled in their favor. ² In October 1987 Judge Krajewski reinstated Nicholls and Kurowski, as well as Lloyd Fisher, to their former positions as assistant Lake County, 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 coffee 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 memorandum informing Fisher, Kurowski and Nicholls "that pursuant to the employment rules as listed that your first notice of being late has been filed because of your late arrival on October 19, 1987." Judge Krajewski issued a 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, intolerable and retaliatory working conditions existing in and around your courtroom, I am constrained, upon the advice 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 I reinstatement order. After hearing testimony on November 4, 1987, Magistrate Rodovich made certified findings of fact, pursuant to 28 U.S.C. Sec. 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 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 Krajewski was interested in appointing 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.

October 19 and that the written public defender employment rules issued that day were designed "to harass and possibly trap [Kurowski and Nicholls] and give the defendant a reason 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. Sec. 636(e)(1).

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 contempt hearing relating to his October 19, 1987, conduct. He also alleges errors in the magistrate's jury instructions 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, Attorney 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 do 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 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.... If no such parts of the proceedings are to be ordered, within the same period the appellant shall file a certificate to that effect.

(2) If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.

(3) Unless the entire transcript is to be included, the appellant shall, within the 10 days time provided in (b)(1) of this Rule 10, file a statement of the issues the appellant intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement...."

Fisher's counsel attempted to explain at oral argument that the transcript was unnecessary to decide the issues presented on review. We disagree. 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 contempt hearing. Fortunately, the appellee Judge Krajewski ordered and filed a complete transcript of the lower court proceedings, realizing, as we do, that the transcript is required 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 situation, several courts of appeal have decided that the failure to file a transcript of the lower court proceedings warrants dismissal of the appeal. Thomas v. Computax 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, the predecessor to Fed.R.App.P. 10.) Two other circuits, 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 Comm'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 comply with Rule 10(b). However, in each of the cases referred 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 possible, and we reach the merits in this case--although, as we will...