Brucar v. Rubin, 80-1053

• Decision Date: 10 December 1980
• Docket Number: No. 80-1053,80-1053
• Citation: 638 F.2d 987
• Parties: Albert BRUCAR and Ruth Brucar, Plaintiffs-Appellants, v. Ira RUBIN, Marvin Juron, and Harry Weisberg, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 987

638 F.2d 987

Albert BRUCAR and Ruth Brucar, Plaintiffs-Appellants, v. Ira RUBIN, Marvin Juron, and Harry Weisberg, Defendants-Appellees.

No. 80-1053.

United States Court of Appeals Seventh Circuit.

Argued Nov. 10, 1980.

Decided Dec. 10, 1980. ^*

Rehearing and Rehearing En Banc Denied Feb. 23, 1981.

Edward S. Boraz, Philip C. Wherry, Chicago, Ill., for plaintiffs-appellants.

Norman J. Lerum, Chicago, Ill., for defendants-appellees.

Before CUMMINGS and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge. ^**

PER CURIAM.

Plaintiffs Albert and Ruth Brucar seek damages against defendants Harry Weisberg, Ira Rubin and Marvin Juron under 42 U.S.C. § 1983 for violation of their civil rights. ¹ Mr. Weisberg is Mrs. Brucar's brother; Mr. Rubin and Mr. Juron are his attorneys. The district court dismissed the complaint for failure to state a claim for which relief could be granted, holding that the defendants are not state actors and that the complaint failed to allege a conspiracy between the defendants and any state official with sufficient specificity to meet the requirements of Sparkman v. McFarlin, 601 F.2d 261 (7th Cir. 1979). The Brucars then filed an amended complaint, which the district court again dismissed on the same ground. The Brucars appeal from both dismissals.

Counts I and IV of the Brucars' amended complaint, which are based on § 1983, include some 99 numbered paragraphs detailing the alleged conspiracy between the defendants and a state court judge. Because we are asked to rule on the sufficiency of the complaint, we will recap, as briefly as possible, the substance of the Brucars' allegations.

The Brucars allege that sometime in 1976, Mr. Weisberg, through his attorneys, brought a petition in the Illinois probate court seeking to have his mother, Dora Weisberg, declared incompetent and to be appointed conservator of her estate. At that time Dora Weisberg was living with the Brucars (her daughter and son-in-law). A hearing was scheduled for October 18, 1976, before Judge Kogut of the Cook County Circuit Court Probate Division. Shortly before the hearing, Mrs. Brucar saw Ira Rubin, Mr. Weisberg's attorney, enter the courtroom from Judge Kogut's chambers, followed by Judge Kogut. The Brucars' attorney was not present in the judge's chambers at that time.

At the hearing Judge Kogut summarily declared Dora Weisberg incompetent. He rejected the Brucars' oral request for examination of her by a court-appointed physician, ² he did not examine Mrs. Weisberg, and he took no evidence regarding her competency. Judge Kogut then appointed Mr. Weisberg conservator of her estate, rejecting the Brucars' objections to Mr. Weisberg's fitness for the job.

As conservator, Mr. Weisberg instituted citation proceedings against the Brucars under the Illinois Probate Act (Ill.Rev.Stat. ch. 3 § 183, now ch. 110 1/2, § 16-1) to recover monies allegedly belonging to Dora Weisberg's estate. The proceedings were initially brought before Judge Kogut. The Brucars moved for change of venue on grounds of the judge's prejudice pursuant to Ill.Rev.Stat. ch. 146 § 1(2). At a hearing on December 21, 1976, Judge Kogut entered an order granting the transfer, but also enjoining the Brucars from transferring any assets in which Dora Weisberg had an interest. According to the amended complaint, the judge then ordered the Brucars out of his courtroom and threatened to jail them if they ever appeared before him again. In addition, he "verbally assaulted" the Brucars' attorney, threatening him with physical violence.

Mr. Weisberg's action against the Brucars was reassigned to Judge Trafelet and a bench trial was held. In an order dated June 30, 1977, Judge Trafelet awarded damages amounting to approximately $44,000 against the Brucars. On July 15, 1977, Judge Trafelet set an appeal bond at $60,000, but on July 18, 1977, he lowered the bond to $44,065.35.

On July 27, 1977, the Brucars filed their notice of appeal and on August 3, 1977, they filed, in the Illinois Appellate Court, a motion for stay pending appeal requesting that the $44,065.35 bond be lowered to $15,000.

On August 4, 1977, Mr. Weisberg, having been notified of the Brucars' August 3 motion, filed in the Cook County Circuit Court a Petition for Rule to Show Cause why the Brucars should not be held in contempt for failing to post the $44,065.35 bond ordered by Judge Trafelet. On August 7, Mr. Brucar met with his attorney to discuss the show cause petition and repeatedly asked his attorney to ensure the petition not be heard by Judge Kogut because of the latter's prejudice. A hearing on the petition was held on August 10, but upon advice of their attorney the Brucars did not appear. They do not know before whom the petition was heard.

Another hearing on the show cause petition was held on August 15, and the Brucars appeared at that time. Even though Judge Trafelet was present in court that day, Judge Kogut presided at the hearing. Because her attorney failed to object to the presence of Judge Kogut, Mrs. Brucar objected that Judge Kogut had been removed from the case and that the issue of the amount of the bond was properly before the Appellate Court. Judge Kogut's response was to order her to be silent upon pain of incarceration.

A third hearing was held on August 19, Judge Kogut again presiding. Upon advice of their attorney, the Brucars did not appear. At this hearing Judge Kogut found the Brucars in contempt of court for failure to post the $44,065.35 bond, ordered their arrest, and ordered that they execute a quit-claim deed of their home to Mr. Rubin's secretary, to be reconveyed upon their posting of the $44,065.35.

The Brucars were arrested on August 21, 1977, and incarcerated in the Cook County Jail, where Mrs. Brucar, having been strip searched and body cavity searched, was attacked by other inmates. Mr. Brucar experienced "similar degradations." On August 22, 1977, the Brucars quit-claimed their home to Mr. Rubin's secretary and were thereupon released from custody.

The issue presented is whether the foregoing allegations state a claim for relief under 42 U.S.C. § 1983. For purposes of this appeal all well pleaded allegations must be taken as true and must be viewed in the light most favorable to the Brucars. City of Milwaukee v. Saxbe, 546 F.2d 693, 704 (7th Cir. 1976); Black v. Brown, 513 F.2d 652, 654 n.3 (7th Cir. 1975); Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969). ³

To recover under § 1983, the plaintiffs must show that the defendants' acts operated to deprive them of their constitutional rights and that the defendants acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The defendants contend that the complaint fails to allege either of these elements adequately.

I. Due Process

The Brucars contend that the orders entered by Judge Kogut on August 10, 15, 19, 22 and 23 were void as a matter of Illinois law and therefore resulted in deprivations of their liberty and their property without due process. The defendants argue the orders were valid.

We address first the Brucars' contention that Judge Kogut's orders were invalid because the Appellate Court had exclusive jurisdiction over the case as of August 3, the day the Brucars moved the Appellate Court to lower the supersedeas bond. We decline to accept this argument.

Stays of the enforcement of judgments pending appeal are governed by Illinois Supreme Court Rule 305 (Ill.Rev.Stat. ch. 110A § 305 (West Supp. 1980)). Rule 305(a) provides for an automatic stay upon the timely filing of a notice of appeal and posting of a supersedeas bond. Rule 305(b) provides for a discretionary stay, which may be granted by the trial court or the reviewing court upon motion. Both of these provisions stay the execution of a trial court's judgment. Neither provides for a stay of the trial court's order fixing the amount of the appeal bond, and we have found neither case nor statute that deals with stays of the latter sort. ⁴ The Brucars argue that Rule 305(f) should be construed to provide for an automatic stay of the appeal bond order. We think such a construction is unduly strained. By its terms, Rule 305(f) merely permits alteration of the terms of the supersedeas bond. The last phrase of the rule appears directed to cases in which the reviewing court increases the amount of the bond: in such cases, the appellant must post the additional amount or the stay of enforcement will be terminated, thus allowing the appellee to execute on the judgment immediately. It might well be desirable to decree that trial courts may not jail appellants for failure to post an appeal bond at a time when the appellants are in the process of asking a higher court to reduce the amount of the bond, but that would be a matter of policy for the Illinois legislature to decide. ⁵ In the absence of any such provision, we are unwilling to hold that, as a matter of Illinois law, the trial court had no power to enforce its appeal bond order as it did.

We agree with the Brucars, however, that Judge Kogut's August orders were void because he had previously been removed from the case on grounds of prejudice.

Illinois permits transfer of venue for, among other reasons, judicial prejudice. Ill.Rev.Stat. ch. 146 § 1(2). The general rule, as stated in innumerable cases, is that where a transfer-for-prejudice motion is presented to the trial court in proper form and before the court has ruled on any substantive matter in the case, the motion must be granted, and any order entered thereafter by the transferor court is void. E. g., In re Estate of Roselli, 70 Ill.App.3d 116, 120-22, 26 Ill.Dec. 463, 388 N.E.2d 87 (1979); Delta Oil Co. v. Arnold, 66 Ill.App.3d 375, 381, 23 Ill.Dec. 389, 384 N.E.2d 25 (1978); City of Peoria v. Peoria Rental, Inc., 61 Ill.App.3d 1, 3, 18 Ill.Dec. 257, 377 N.E.2d 546 (1978); Pavlis v. Jewel Tea Co., 53 Ill.App.3d 287, 289...