Kissell v. Breskow
| Decision Date | 18 July 1978 |
| Docket Number | No. 77-1889,77-1889 |
| Citation | 579 F.2d 425 |
| Parties | Robert N. KISSELL and Beverly J. Kissell, Plaintiffs-Appellants, v. Sheldon A. BRESKOW, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lendall B. Terry, Osgood, Ind., for plaintiffs-appellants.
Virgil L. Beeler, Indianapolis, Ind., for defendant-appellee.
Before SWYGERT and TONE, Circuit Judges, and MARKEY, Chief Judge of the Court of Customs and Patent Appeals. *
Appeal from the district court's grant of summary judgment for Breskow in an action under 42 U.S.C. § 1983, 1 alleging that Breskow violated the Kissells' constitutional rights to court access and choice of counsel. We affirm.
Kissells' attorney, Lendall B. Terry (Terry), assumed office as Indiana state judge, Ripley Circuit Court on January 1, 1973. On February 20, 1975, the Supreme Court of Indiana in In the Matter of Terry, Judge of the Ripley Circuit Court, 80th Judicial Circuit, 323 N.E.2d 192 (Ind.1975), found that Terry's conduct violated the Code of Judicial Conduct and Ethics and ordered him suspended without pay. A hearing examiner had found that Terry's conduct also violated the Code of Professional Responsibility; however, the Indiana Supreme Court did not take any disciplinary action against Terry as a member of the bar.
Terry, as attorney for the Kissells, filed an action in Ripley Circuit Court on December 22, 1976, naming John L. Kellerman and William W. Greeman as defendants. Kellerman and Greeman were two attorneys who had signed a "grievance" initiating the disciplinary proceedings that resulted in Terry's suspension from the bench. On December 28, 1976, Terry filed another action in Ripley Circuit Court, this time as attorney for Charles and Linda Smith, also against Kellerman and Greeman. On January 3, 1977, Terry, as plaintiff, filed a third state action against Kellerman and Greeman.
Also on January 3, 1977, Breskow assumed the office of Executive Secretary of the Disciplinary Commission of Indiana. The members of that Commission are appointed by the Indiana Supreme Court and are empowered to investigate and prosecute claims of misconduct by Indiana attorneys. The members of the Commission appoint the Executive Secretary with the approval of the Indiana Supreme Court.
The functions of the Executive Secretary are spelled out in §§ 10-14, Rule 23 of the Indiana Rules for Admission to the Bar and the Discipline of Attorneys (Rule 23). Rule 23 charges the Executive Secretary with the duty of investigating alleged misconduct by Indiana attorneys, and of presenting charges and making recommendations to the Disciplinary Commission on whether disciplinary action is required. The Executive Secretary also prosecutes cases of attorney misconduct before the Indiana Supreme Court.
After assuming the office of Executive Secretary, Breskow received communications concerning Terry from members of the bar and the Disciplinary Commission. On February 10, 1977, Breskow requested the Disciplinary Commission to consider asking the Indiana Supreme Court to decide what, if any, disciplinary action should be taken against Terry for Disciplinary Rules violations not acted on in Terry, supra. Breskow also presented the Commission with additional professional misconduct charges against Terry. Breskow notified Terry of the additional charges as required by Rule 23, § 10(d). That notification is commonly called a "grievance" form.
In that grievance, Breskow alleged, Inter alia, that the actions instituted by the Kissells, Smiths and Terry against Kellerman and Greeman "may be groundless and aimed at harassment," because those actions were taken against attorneys who had participated in the proceeding resulting in Terry's removal from the bench. Breskow further alleged in that grievance that in November, 1976, Terry had attempted to bribe a state prosecutor through the prosecutor's law partner, and that Terry had been indicted for that offense by the Jefferson County Grand Jury on testimony of the prosecutor and the prosecutor's law partner. Breskow pointed out in the grievance that Terry was not convicted of the bribery charge, and that Terry had filed three law suits in three counties against the prosecutor and the prosecutor's law partner seeking $13,000,000 in damages for alleged false imprisonment, malicious prosecution and defamation of character. In the grievance, Breskow alleged that those three suits "may be groundless, an abuse of process and aimed at harassment." Breskow further alleged in the grievance that Terry had improperly contacted prospective members of a Grand Jury resulting in dismissal of that Grand Jury.
Breskow did not divulge the contents of the grievance to the judge presiding over Kissells' action or to anyone involved in that action except Terry, Breskow informed only Terry, the Disciplinary Commission, and the Commission staff and counsel.
On February 10, 1977, the Judge Pro Tempore of the Ripley Circuit Court entered an order denying a motion by Kellerman and Greeman to dismiss the Smiths' complaint. On February 17, 1977, the Judge Pro Tempore also denied a motion to dismiss the Kissells' complaint against Kellerman and Greeman.
On February 24, 1977, the Kissells dismissed Terry as their attorney in the state court action. However, on April 6, 1977, after the present federal action was filed, Terry reentered his appearance in that state court action on behalf of Mr. Kissell only. The record does not reveal why Mrs. Kissell did not join in authorizing that appearance. Apparently, that state court action remains pending.
On March 8, 1977, Terry mailed a grievance response to each member of the Disciplinary Commission and each Justice of the Indiana Supreme Court. On March 11, 1977, Breskow reported to the Disciplinary Commission his consideration of the charges against Terry and whether the Commission should authorize a supplemental complaint against Terry with the Clerk of the Indiana Supreme Court. On the same day, the Kissells filed their complaint in this case under 42 U.S.C. § 1983, seeking damages from Breskow for allegedly violating their constitutional rights to court access and choice of counsel. The "violation" allegedly resided in Breskow's presentation of charges against Terry to the Disciplinary Commission and in his notification to Terry of those charges. The damages sought are in the exact amount claimed against Kellerman and Greeman in the pending state court action, plus punitive damages.
On March 23, 1977, the Indiana Supreme Court denied a petition by Terry to terminate his suspension without pay. In a per curiam opinion, the Court adopted the findings of fact submitted by a hearing office (1) that Terry had contacted the state prosecutor's law partner and offered him $1,000 to keep an indictment from being returned against a police officer; (2) that after that prosecutor's law partner had testified before the Grand Jury, Terry had filed three lawsuits in three counties against that partner seeking $13,000,000 in damages; (3) that Terry had distributed over 2,000 copies of letters addressed to the Chief Justice of the Indiana Supreme Court containing false and misleading accusations against various judges and attorneys; and, (4) that Terry continued to bear malice and animosity toward certain lawyers in Ripley County and toward Justice Hunter of the Indiana Supreme Court and was attempting to seek impeachment of Justice Hunter because he authored the opinion suspending Terry from the bench.
On July 13, 1977, the Disciplinary Commission, under Rule 23, § 12, filed a Supplemental Verified Complaint for Disciplinary Action with the Indiana Supreme Court requesting that Terry be disbarred, or otherwise disciplined, as warranted, for professional misconduct.
(1) Whether there is a genuine issue of material fact, and (2) whether Breskow is clothed with quasi-judicial immunity in performing his duties as Executive Secretary of the Disciplinary Commission.
OPINION(1) Genuine Issue of Material Fact
The Kissells rely on an affidavit by Terry 2 to establish a genuine issue of material fact. Terry's affidavit does not dispute that Breskow acted at all material times as Executive Secretary, or that all of Breskow's actions occurred in the course of performing duties of that office. Reliance is placed on the allegation in Terry's affidavit that Breskow made a perjured statement with malice, thus prejudicing Kissells' pending actions.
Though Terry's charge is serious and not to be lightly taken, it is clear from the undisputed facts that the charge is baseless. The allegedly perjured statement concerns the grievance Breskow presented to the Disciplinary Commission on February 10, 1977. Terry avers that Breskow, in that grievance, stated that Terry had attempted to bribe a state prosecutor. Terry received a directed verdict of acquittal on that charge and avers that Breskow thus made a perjured statement with malice because Breskow knew of the acquittal. What Terry overlooks is that, in the same grievance, Breskow also stated that Terry had Not been convicted of that bribery charge. Rather than a perjured statement, Breskow simply recited facts for consideration by the Commission in its determination of whether disciplinary action should be taken against Terry. That Terry was acquitted on the bribery charge does not necessarily preclude disciplinary proceedings. Grossgold v. Supreme Court of Illinois, 557 F.2d 122 (7th Cir. 1977).
The Kissells also rely on their pleadings to create alleged material fact issues requiring a trial. 3 Fed.R.Civ.P. 56(e), however, makes clear that "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response * * * must set forth specific facts showing that there is a genuine issue for trial."
The Kissells charge that there is a genuine issue of Breskow's credibility, because he is "interested" and...
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