Mazanec v. North Judson-San Pierre School Corp.

Decision Date07 August 1985
Docket NumberNo. S 81-219.,S 81-219.
Citation614 F. Supp. 1152
PartiesRichard MAZANEC, Barbara Mazanec, Patricia Mazanec, Susan Mazanec, Angela Mazanec, and the Greenhouse Academy, a not-for-profit corporation, Plaintiffs, v. NORTH JUDSON-SAN PIERRE SCHOOL CORPORATION, James F. Moore, Superintendent of North Judson-San Pierre School Corporation, Steven J. Moerlein, Prosecuting Attorney for the 44th Judicial Circuit of the State of Indiana, Marilyn Mabry, State Attendance Officer for the State of Indiana, each of whom is sued individually and in his/her official capacity, Defendants.
CourtU.S. District Court — Northern District of Indiana

COPYRIGHT MATERIAL OMITTED

Richard and Barbara Mazanec, pro se.

Richard LaSalvia, South Bend, Ind., for plaintiffs.

George B. Huff, Jr., David Michael Wallman, Deputy Attys. Gen., Indianapolis, Ind., B. Patrick Maloy, Knox, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

I.

This case has now been the subject of a published opinion of this court in Mazanec v. North Judson-San Pierre School Corporation, 552 F.Supp. 873 (1982), and two published opinions by the United States Court of Appeals for this Circuit. See Mazanec v. North Judson-San Pierre School Corporation, 750 F.2d 625 (7th Cir.1984) and, most recently, on May 31, 1985, now found at 763 F.2d 845 (7th Cir.1985). It is with the mandate contained in that last opinion of the Court of Appeals that this court will now attempt to comply. In the interest of fairness and justice this court again held oral argument in this case on the 19th day of July, 1985, in South Bend, Indiana and at the request of the plaintiffs agreed to entertain supplemental briefing and proposed findings in order to comply with both Rule 52 of the Federal Rules of Civil Procedure and the mandate of the Court of Appeals. This will also reflect the necessary findings and conclusions as required by Rule 52.

From the last proceedings held in this court it is readily apparent that counsel for these plaintiffs retained a very expansive view of the issues which remain in this case. Counsel for the plaintiffs took the view that the most recent opinion of the Court of Appeals written by Judge Posner decides solely the question of abstention and the remaining comments therein are merely dicta and do not constitute the law of this case. While this court does not entertain such a restrictive view of that opinion it will in the interest of caution deal with all of the issues that are deemed to remain the proper subject of the decision of this court based on the proceedings and record in this case.

Plaintiff's counsel would have this court issue an injunction that is essentially advisory to all who are in positions of prosecutorial authority in the State of Indiana as to what approach should be taken in cases involving the education of school age children in the so-called home school setting. Such an effort would be wholly advisory and is not mandated by the record in this case. As the record here well illustrates, the factual patterns vary and each prosecutor must examine each case in light of the constitutional and statutory values involved. It is not for this court to use its extensive injunctive authority to issue such a manual for state prosecutors.

It was explicitly conceded at the last oral argument in this court that no damage claim is here made against David M. Geisler as Prosecuting Attorney of the 44th Judicial Circuit of the State of Indiana (Starke County) or his successor in office. Prosecutor Geisler and his successor in office are certainly entitled to immunity from any damage claim under the clear and explicit teaching of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) and its progeny. The plaintiffs do argue that the present prosecuting attorney of the 44th Judicial Circuit of the State of Indiana remains in this case for purposes of injunctive relief which is prospective in nature. It is beyond any dispute whatsoever that any and all criminal charges that were brought against Barbara Mazanec by the prosecuting authorities of the State of Indiana which in any way relate to the subject matter of this case have either been dismissed or resolved. This record is absolutely void of any suggestion whatsoever that the present prosecuting attorney or indeed anyone with prosecutorial authority in the State of Indiana has any intention whatsoever of prosecuting Barbara Mazanec or any of the other plaintiffs in regard to the method in which Barbara Mazanec desires and chooses to educate her children. Therefore, there remains no bases in this record for any type of prospective injunctive relief as to the prosecuting attorney who has jurisdiction in Starke County, Indiana.

II.

The plaintiffs have conceded that any damage claim against Marilyn V. Mabry as State Attendance Officer in the Department of Public Instruction in the State of Indiana would be precluded by the Eleventh Amendment of the United States Constitution as defined in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), and most recently reaffirmed by the Supreme Court of the United States in Kentucky v. Graham, ___ U.S. ___, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and Atascadero State Hospital v. Scanlon, ___ U.S. ___, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). For cases dealing with the Eleventh Amendment in this court see Burr v. Duckworth, 547 F.Supp. 192 (1982); Elliott v. Hinds, 573 F.Supp. 571 (1983); Hendrix v. Indiana State Public Defender System, 581 F.Supp. 31 (1984); Wellman v. Trustees of Purdue University, 581 F.Supp. 1228 (1984); and Schott v. Helper, 101 F.R.D. 99 (1984). See also, Owen v. Lash, 682 F.2d 648 (7th Cir.1982). Therefore, no damage claim may be successfully asserted, and indeed none has been proven as against the defendant, Marilyn V. Mabry, in her aforesaid official capacity. Neither is there any basis for any damage claim against Marilyn V. Mabry, even in a nominal sum, in her individual capacity.

Marilyn V. Mabry testified in this court and this court was greatly impressed with her credibility as a witness and her competence as a very sensitive public official. She is a member of a minority race. She appears to be aware of the rights and aspirations of other persons who represent minority thought or positions in this society. She fulfilled her statutory obligations to the State of Indiana and dealt with Barbara Mazanec competently and in a highly sensitive manner. There is nothing in this record to indicate in any way that Marilyn V. Mabry violated the constitutional rights of any of the plaintiffs in this case. There is no manifestation of her interest to do so. It is suggested that some way or other Marilyn V. Mabry, an official in the Department of Public Instruction of the State of Indiana, had some kind of constitutional or statutory duty to instruct the prosecutors in the State of Indiana in regard to so-called truancy prosecutions that may spring from efforts at so-called home study situations. Ms. Mabry is not a lawyer nor does she pretend to be a constitutional scholar. She had no duty under the statutes of the State of Indiana to provide any legal guidance to the prosecutors of the State of Indiana on this subject. Under the Constitution1 and statutes of the State of Indiana2 it is not contemplated that she participate directly in the exercise of prosecutorial discretion. Under Ind.Code § 20-8.1-3-16 the state attendance officers had authority to initiate civil court actions whenever necessary for the enforcement of compulsory attendance laws. This authority continues. See Ind.Code § 4-26-3-20.1 as amended by P.L. 20-1984, Sect. 201. In any event this state attendance officer in no way exercised her statutory authority to initiate any court action here. The prosecuting attorneys are constitutional officers in the State of Indiana and their functions are separate and distinct from those of the Department of Public Instruction and it would be wholly inappropriate to place these kinds of burdens on administrative officials who find themselves in the position that Ms. Mabry found herself in dealing with Barbara Manazec and the other plaintiffs here. The record in this case leads clearly to the conclusion that the defendant Mabry is entitled to damage immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

Barbara Mazanec phoned Ms. Mabry for information regarding the compulsory attendance act and failed to even disclose that she (Mazanec) was attempting to establish a home school. Section 1983 requires official action not official clairvoyance. Barbara Mazanec testified that Ms. Mabry "did the best she could" in this matter. Ms. Mabry gave no testimony in the state criminal cases against Mazanec.

It is also clear that Marilyn V. Mabry in her official capacity or in her individual capacity is in no way now threatening to or attempting to interfere with the First Amendment free exerise rights of the plaintiffs in this case. Therefore, no claims for either damage or injunctive relief are here made as against Marilyn V. Mabry individually or officially. Therefore, Marilyn V. Mabry is entitled to judgment.

III.

Likewise, there is no basis for damage or injunctive relief stated in the record of this case as against North Judson-San Pierre School Corporation. The very most that they did was to approve, after the fact, the actions of its then Superintendent James F. Moore. Therefore, no basis for damage or injunctive relief is stated against the North Judson-San Pierre School Corporation. This court is well aware that the so-called good faith defense on damage issues cannot be asserted by the school corporation. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).

The last defendant that must be dealt with in this record is James F. Moore. James F. Moore was under a statutory obligation to inquire into the...

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