Harris v. County of Racine, Civ. A. No. 80-C-635.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtWilliam F. Bock, Corp. Counsel, Racine, Wis., for County of Racine, defendant
Citation512 F. Supp. 1273
PartiesSylvester HARRIS, Plaintiff, v. COUNTY OF RACINE and Employers Mutual Liability Insurance Company of Wisconsin, Defendants.
Decision Date04 May 1981
Docket NumberCiv. A. No. 80-C-635.

512 F. Supp. 1273

Sylvester HARRIS, Plaintiff,
v.
COUNTY OF RACINE and Employers Mutual Liability Insurance Company of Wisconsin, Defendants.

Civ. A. No. 80-C-635.

United States District Court, E. D. Wisconsin.

May 4, 1981.


512 F. Supp. 1274

Paul J. Gossens, Milwaukee, Wis., for plaintiff.

William F. Bock, Corp. Counsel, Racine, Wis., for County of Racine, defendant.

Stanley F. Schellinger, Milwaukee, Wis., for Employers Mut. Liability Ins. Co. of Wis., defendant.

REYNOLDS, Chief Judge.

This is an action in diversity brought pursuant to 28 U.S.C. § 1332. It arises out of a judgment entered on March 14, 1978, in a 42 U.S.C. § 1983 civil rights action in favor of the plaintiff Sylvester Harris against Richard G. Harvey, Jr., then a county judge in Racine County, Wisconsin. The judgment was in the amount of $60,000 in compensatory damages, $200,000 in punitive damages, and $8,141.36 in costs. According to the complaint the sum of $10,651.51 has been paid toward the judgment, and interest is accumulating at the rate of 7 per cent or $51.42 per day.

In this action Sylvester Harris seeks to recover the amount owing on the judgment from the defendant County of Racine ("Racine"), Judge Harvey's employer at the relevant times, and from Racine's insurer, the defendant Employers Mutual Liability Insurance Company of Wisconsin ("Employers"). Paragraph 6 of the complaint alleges that Racine, as Judge Harvey's employer, provided liability coverage to him in the amount of $10,000, and that Employers, as Racine's insurer, provided liability coverage to Judge Harvey up to the amount of $500,000. The complaint seeks recovery for the total amount owing on the judgment against Judge Harvey from Racine and Employers, jointly and severally.

Presently pending before the court are motions for summary judgment brought on behalf of each party. For the following reasons the plaintiff's motion will be granted in part and denied in part, Racine's motion will be granted, and Employer's motion will be denied.

Harris v. Harvey

In 1975 Sylvester Harris, then a black police officer in Racine, Wisconsin, commenced a federal civil rights action against Judge Harvey alleging violation of Harris' rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. The published

512 F. Supp. 1275
decisions in the action are set forth in 419 F.Supp. 30 (E.D.Wis.1976), 436 F.Supp. 143 (E.D.Wis.1977), 453 F.Supp. 886 (E.D.Wis. 1978), and 605 F.2d 330 (7th Cir. 1979), cert. denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980)

Harris alleged that for racially discriminatory reasons Judge Harvey had instituted a criminal John Doe investigation of Harris which resulted in the issuance of criminal charges against him, and during and subsequent to the John Doe proceedings had engaged in a campaign of vilification against Harris by use of the media and of personal contacts with Racine city officials designed to injure Harris personally and professionally and to cause his termination as a Racine police officer. Judge Harvey was granted summary judgment with respect to Harris' due process claims and his claims based upon the judge's conduct of the John Doe proceeding and his participation in a subsequent habeas corpus action, see 436 F.Supp. 143, but summary judgment was denied with respect to the remainder of Harris' equal protection claim. At trial the jury was asked to determine whether Judge Harvey's actions concerning the plaintiff were racially motivated, whether they resulted in injury to the plaintiff, and whether they were taken with malice. The jury answered "yes" to all three questions and awarded Harris $60,000 in compensatory damages and $200,000 in punitive damages.

Subsequent to trial, Judge Harvey moved for judgment notwithstanding the verdict. His motion was denied. In the course of his decision on the motion, which was not published, Judge Gordon stated that the evidence was sufficient to support the jury's verdict "that the defendant intentionally acted with racial motivation to deprive the plaintiff of equal protection of the laws." (Decision and order of June 26, 1978, in Harris v. Harvey, C.A.No.75-C-612, at page 2.) Judge Gordon also ruled as a matter of law that subject matter jurisdiction over the action existed because Judge Harvey was acting at all times relevant under color of state law:

"I was convinced at trial and remain convinced as a matter of law that the defendant acted under the pretense of his standing as a county judge. No reasonable juror, in my opinion, could find otherwise. Letters were written on official stationery. Press releases were disseminated by the defendant, identified as a county judge, through the media. The defendant brought to bear his influence as county judge on those to whom he wrote and spoke. When the defendant Judge Harvey urged the discharge of Lieutenant Harris with racial overtones in out-of-court conversations with Captain Pavkovich and Assistant Chief Hagopian, he was acting as a functionary of the state in at least as high a degree as the off-duty policeman in Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977). In my opinion, Judge Harvey's conduct easily fits the general rule stated in Roberts v. Acres, 495 F.2d 57, 59 (7th Cir. 1974), that:
"`... an individual's conduct is engaged in under color of law if clothed with the authority of the state and purporting to act thereunder, whether or not the conduct complained of was authorized.'" (Decision and order at page 5.)

Finally Judge Gordon ruled as a matter of law that Judge Harvey was not entitled to the defense of judicial immunity from damages for his actions against Harris:

"It is equally clear that the acts taken by the defendant were not judicial acts. In Stump v. Sparkman, supra 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), the Supreme Court stated:
`The relevant cases demonstrate that the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i. e., whether it is a function normally performed by a judge, and to the expectation of the parties, i. e., whether they dealt with the judge in his judicial capacity.' 46 U.S.L.W. at 4256.
Writing letters to the police chief and to other city officials to pressure the discharge of a police officer and issuing
512 F. Supp. 1276
press releases about judicial proceedings are not acts normally performed by judges. These acts, hostile to the plaintiff, were perpetrated by Judge Harvey outside of his courtroom and were not even plausibly a part of his judicial functions. No reasonable interpretation of the evidence could be taken which would permit such conduct to be regarded as within his judicial capacity." (Decision and order at page 6.)

In affirming the judgment and Judge Gordon's decision not to set it aside, the Seventh Circuit agreed that Judge Harvey was acting under color of state law "by using the power and prestige of his state office to damage the plaintiff," 605 F.2d at 337, and that he was not entitled to the defense of judicial immunity because "the acts perpetrated outside of Judge Harvey's courtroom and not then a part of his judicial functions were undertaken in the `absence of all jurisdiction,'" 605 F.2d at 336, not being functions normally performed by a judge or functions with respect to which the persons dealing with him perceived him to be acting in a judicial capacity. The Seventh Circuit in addition ruled that even were a judge entitled to official immunity for actions taken by him in the course of performing his nonjudicial duties, Judge Harvey would not have been entitled to that defense:

"* * * Defendant's actions were assertedly undertaken to preserve the integrity and independence of his court. * * Clearly the Skolnick v. Campbell, 398 F.2d 23 (7th Cir. 1968) case is not precedent for extending judicial immunity to non-judicial acts. Even if it were, it would not protect this defendant because the public and private campaign of vilification alleged in the complaint and credited by the jury went well beyond an appropriate response to protect the integrity and reputation of the court. * * * Since we agree with the district court that Judge Harvey's attacks on plaintiff were not part of his duties, Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), establishing a defense of official immunity would not afford him a defense even if it did apply to judges. * * *" 605 F.2d at 336-337.

With regard to the participation of the defendants in this action in Judge Harvey's defense in Harris v. Harvey, C.A. No. 75-C-612, Employers undertook the defense of Judge Harvey at trial and supplied him with counsel through the entry of judgment. At the time it undertook his defense, however, Employers also notified him and Racine County that if at any time Judge Harvey was found to have been acting outside the scope of his employment, it would then decline to provide further defense or to assume responsibility for any judgment entered against him. After the entry of judgment, Employers did refuse to provide Judge Harvey with counsel for post-judgment motions or for appeal and took the position, which it continues to maintain, that it is not obligated under its insurance policy with Racine County to cover the judgment entered against Judge Harvey.

Once Employers withdrew from his defense, Judge Harvey hired private counsel and applied to Racine County to underwrite the costs of his continued defense. The county board passed a resolution authorizing payment of Judge Harvey's attorney's fees. A citizens' group filed a civil action in Racine County Circuit Court seeking a writ of prohibition against the resolution. Their suit was denied at the trial court level, but that decision was reversed on appeal in an unpublished decision issued on November 20, 1979, by the Court of Appeals, District II, holding that § 895.46(1), Wis.Stats., precluded the county...

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15 practice notes
  • U.S. ex rel. Rosales v. San Fran. Housing Author., No. C-95-4509 CAL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 26, 2001
    ...though multiple damages are not for all purposes equivalent to common law punitive damages.'") (quoting from Harris v. County of Racine, 512 F.Supp. 1273, 1281 (E.D.Wis.1981)); see also Smith v. Wade, 461 U.S. 30,36 fn. 5, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (distinguishing punitive civil......
  • Rakovich v. Wade, Nos. 85-1529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 27, 1987
    ...fear of reprise, and encourages citizens to do so. As the trial judge himself acknowledged six years ago in Harris v. County of Racine, 512 F.Supp. 1273, 1282 Page 1415 "While the statutory protection of individual civil rights has had the beneficial effects of legislatively reinforcing the......
  • Hibma v. Odegaard, Nos. 84-1137
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 30, 1985
    ...relationship." 102 Wis.2d at 456-57, 307 N.W.2d at 168-69 (emphasis added). The Wisconsin District Court, in Harris v. County of Racine, 512 F.Supp. 1273 (E.D.Wis.1981), likewise, concluded "[i]n interpreting the phrase 'acting within the scope of employment' as used in Sec. 895.46(1), the ......
  • U.S. ex rel. Graber v. City of New York, No. 93 Civ. 8984 DC.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 12, 1998
    ...and "exemplary damages" interchangeably even though they have slightly different meanings. See, e.g., Harris v. County of Racine, 512 F.Supp. 1273, 1281 (E.D.Wis.1981) ("[I]t would be an exercise in semantics ... [to] refer[] to multiple damages as `augmented compensatory' damages, or some ......
  • Request a trial to view additional results
15 cases
  • U.S. ex rel. Rosales v. San Fran. Housing Author., No. C-95-4509 CAL.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 26, 2001
    ...though multiple damages are not for all purposes equivalent to common law punitive damages.'") (quoting from Harris v. County of Racine, 512 F.Supp. 1273, 1281 (E.D.Wis.1981)); see also Smith v. Wade, 461 U.S. 30,36 fn. 5, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (distinguishing punitive civil......
  • Rakovich v. Wade, Nos. 85-1529
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 27, 1987
    ...fear of reprise, and encourages citizens to do so. As the trial judge himself acknowledged six years ago in Harris v. County of Racine, 512 F.Supp. 1273, 1282 Page 1415 "While the statutory protection of individual civil rights has had the beneficial effects of legislatively reinforcing the......
  • Hibma v. Odegaard, Nos. 84-1137
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 30, 1985
    ...relationship." 102 Wis.2d at 456-57, 307 N.W.2d at 168-69 (emphasis added). The Wisconsin District Court, in Harris v. County of Racine, 512 F.Supp. 1273 (E.D.Wis.1981), likewise, concluded "[i]n interpreting the phrase 'acting within the scope of employment' as used in Sec. 895.46(1), the ......
  • U.S. ex rel. Graber v. City of New York, No. 93 Civ. 8984 DC.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 12, 1998
    ...and "exemplary damages" interchangeably even though they have slightly different meanings. See, e.g., Harris v. County of Racine, 512 F.Supp. 1273, 1281 (E.D.Wis.1981) ("[I]t would be an exercise in semantics ... [to] refer[] to multiple damages as `augmented compensatory' damages, or some ......
  • Request a trial to view additional results

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