Kunstler, In re
| Decision Date | 12 October 1990 |
| Docket Number | No. 89-2815,89-2815 |
| Citation | 914 F.2d 505 |
| Parties | , 17 Fed.R.Serv.3d 1215 In re William M. KUNSTLER. In re Barry NAKELL. In re Lewis PITTS, Appellants, ROBESON DEFENSE COMMITTEE; Carnell Locklear; Mary Sanderson; Thelma Clark; Eleanor Jacobs; Betty McKellar; Eddie Hatcher; Timothy Bryan Jacobs, Plaintiffs, v. Joe Freeman BRITT; Richard Townsend; Lee Sampson; Hubert Stone; Lacy Thornburg; Robert Morgan; James Bowman; SBI Doe, I; SBI Doe, II; SBI Doe, III; Deputy Sheriff Doe, I; Deputy Sheriff Doe, II; Deputy Sheriff Doe, III; Deputy Sheriff Doe, IV; Deputy Sheriff Doe, V; Da Doe, I; Da Doe, II; Da Doe, III; Robeson County; Defendants-Appellees, The North Carolina Association of Black Lawyers; North Carolina Civil Liberties Union; North Carolina Academy of Trial Lawyers; National Lawyers' Guild, North Carolina Chapter, Amici Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Morton Stavis, Center for Constitutional Rights, New York City (George Cochran, Law Center, University, Miss., Jerold Solovy, Laura Kaster, Jenner & Block, Chicago, Ill., on brief), for appellants.
David Roy Blackwell, Sp. Deputy Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C. (Lacy H. Thornburg, Atty. Gen., James J. Coman, Sr. Deputy Atty. Gen., Joan H. Byers, Sp. Deputy Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., Steven C. Lawrence, Anderson, Broadfoot, Johnson & Pittman, Fayetteville, N.C., on brief), for appellees.
Jonathan D. Sasser, Moore & Van Allen, Durham, N.C., Martha A. Geer, Smith, Patterson, Follin, Curtis, James, Harkavy & Lawrence, Raleigh, N.C., for amici curiae North Carolina Civ. Liberties Union, The North Carolina Academy of Trial Lawyers, and The North Carolina Ass'n of Black Lawyers.
J. Phillip Griffin, Jr., Sherri Zann Rosenthal, Katherine A. Hermes, Law Student, Durham, N.C., for amicus curiae North Carolina Chapter of the Nat. Lawyers Guild.
Daniel J. Popeo, Richard A. Samp, Washington Legal Foundation, Washington, D.C., for amici curiae The Washington Legal Foundation, U.S. Senator Jesse Helms, U.S. Representatives Howard Coble and J. Alex McMillan, and The Allied Educational Foundation.
Before CHAPMAN, WILKINSON and WILKINS, Circuit Judges.
Three attorneys appeal the award of Rule 11 sanctions against them in the amount of $122,834.28. Appellants were sanctioned following the dismissal of a 42 U.S.C. Sec. 1983 action, in which they represented certain plaintiffs seeking monetary damages and injunctive relief from the Governor of North Carolina, a number of North Carolina district attorneys, a sheriff, certain State Bureau of Investigation officers, the State Attorney General and others for an allegedly improper state criminal prosecution and harassment. We affirm in part, vacate in part, and remand with instructions.
The appellant attorneys are Barry Nakell, a professor at the University of North Carolina School of Law; Lewis Pitts, Director of the Christic Institute South, a public interest law firm in Carrboro, North Carolina; and William Kunstler, a nationally known civil rights attorney. The Sec. 1983 action was connected with the appellants' earlier representation of two American Indians, Eddie Hatcher and Timothy Jacobs, in a federal criminal case.
On February 1, 1988, Hatcher and Jacobs staged an armed takeover of The Robesonian, a local newspaper in Robeson County, North Carolina. Hatcher and Jacobs held twenty hostages and charged the State District Attorney and the Sheriff's Office with corruption and criminal misconduct. Hatcher and Jacobs surrendered to federal Hatcher and Jacobs were acquitted of federal criminal charges on October 14, 1988, but North Carolina District Attorney Joe Freeman Britt announced that Hatcher and Jacobs might face state indictments. Soon after that announcement, Hatcher began a petition drive seeking to have Hubert and Kevin Stone removed from the Sheriff's Office. The Robeson Defense Committee, which had supported Hatcher in his federal trial, supported the petition drive. In November 1988, newspaper reports indicated that the State Bureau of Investigation (SBI) was investigating whether there had been a conspiracy in the takeover of The Robesonian.
authorities in exchange for a promise that a Governor's Task Force would investigate their complaints. The Task Force ultimately announced that it had found no evidence to support Hatcher's and Jacobs' charges.
Appellants Barry Nakell and Lewis Pitts contacted the Attorney General's office to express their concern that SBI agents would intimidate citizens who were working with Hatcher in the petition drive. The Attorney General responded that no action would be taken by his office because he did not believe that the SBI was engaged in any abuse of process. Attorney Nakell alleges that the Deputy Attorney General orally admitted that the decision was political.
Attorney Pitts volunteered legal assistance to anyone on the Robeson Defense Committee subjected to harassment because of their participation in the petition drive. Appellants allege that six members of the Defense Committee contacted Attorneys Pitts and Nakell with claims of harassment by SBI agents and the Sheriff's Department, primarily involving surveillance and questioning.
On December 6, 1988, Hatcher and Jacobs were indicted on state charges. After the indictment, Jacobs fought extradition from New York. Hatcher was in federal custody in California.
By late December 1988, appellants contend that they believed that Jacobs' extradition, the pending state prosecutions, and an alleged pattern of activity by the District Attorney and his staff, members of the Sheriff's Department, and the SBI raised constitutional concerns which could only be resolved by a civil suit, because public officials were unresponsive. Appellants contend that they also believed that there was an illegal campaign to split Jacobs from Hatcher, and to interfere with Jacobs' right to counsel by persuading him to hire local counsel.
Attorneys Pitts and Nakell contend that they initially refrained from filing the complaint in hopes of enhancing Jacobs' plea bargaining opportunities, but Mr. Nakell filed the complaint on January 31, 1989, the eve of the one-year anniversary of the armed takeover of The Robesonian, and he called a press conference to announce the filing. An amended complaint, signed by all three appellants, was filed on March 16, 1989.
The suit named eight plaintiffs, including various members of the Robeson Defense Committee, and Jacobs and Hatcher. The thirty-page amended complaint names nineteen defendants, including two district attorneys and members of their staffs, five SBI agents, the SBI Director, the Sheriff of Robeson County and five Deputy Sheriffs, the Attorney General of North Carolina, and the Governor of North Carolina. The complaint alleges First Amendment and Sixth Amendment violations concerning an alleged campaign of intimidation of political activity, and efforts to induce Jacobs to testify against Hatcher. All defendants were sued in their official and individual capacities, except the Governor, who was named only in his official capacity in a count seeking an injunction against extradition. The complaint also sought injunctions against the pending state criminal prosecutions, and against the defendants' harassment and interference with the attorney-client relationship established by Jacobs. The complaint sought damages against all individually named defendants and Robeson County.
After the case was filed, appellants sought expedited discovery to depose defendant SBI agent Bowman, who was the case agent in the state's pending criminal On April 20, Mr. Nakell called Joan Byers, a Special Deputy Attorney General, seeking defendants' approval to a stipulated dismissal under Rule 41(a)(1)(ii). Byers would not stipulate to a dismissal under Rule 41(a)(1), but authorized appellants to state that defendants did not object to a dismissal under Rule 41(a)(2). Appellants proceeded under Rule 41(a)(2), and the order dismissing the case was entered on May 2, 1989.
action against Jacobs and Hatcher. The defendants moved for a protective order claiming that discovery was improperly sought to obtain information concerning the state criminal proceedings, which plaintiffs could not otherwise obtain. The district court did not rule on this motion prior to the dismissal of the case. In late March 1989, Jacobs, having failed in resisting extradition, was returned to North Carolina. In April, Jacobs agreed to a plea bargain. Appellants contend that a variety of events then caused them to reevaluate the viability of their civil suit, and to conclude that dismissal was appropriate.
On June 13, 1989, the state defendants filed their Rule 11 motion, and the county defendants filed a similar motion for sanctions on July 5. On August 8, appellants responded to the Rule 11 motions and requested an evidentiary hearing. On September 5, appellants filed a Rule 11 motion seeking sanctions against the appellees. On September 8, the court heard arguments of counsel and shortly thereafter requested submissions by defendants' counsel of their fees and expenses. On September 29, the district court imposed Rule 11 sanctions upon appellants, and dismissed appellants' Rule 11 motion. Sanctions against appellants included full fees and costs of $92,834.28 and $10,000 additional sanctions against each appellant based upon the baseless claims which appellants had taken care to publicize. We affirm the district court's findings that appellants violated all three prongs of Rule 11, but vacate and remand for reconsideration of the appropriate sanction.
Initially, we must determine whether the defendants' failure to notify the plaintiffs or the court prior to dismissal that defendants intended to file a Rule 11 motion should have...
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