Nesses v. Shepard

• Decision Date: 10 October 1995
• Docket Number: No. 93-3928,93-3928
• Citation: 68 F.3d 1003
• Parties: Morton NESSES, Plaintiff-Appellant, v. Randall T. SHEPARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1003

68 F.3d 1003

Morton NESSES, Plaintiff-Appellant, v. Randall T. SHEPARD, et al., Defendants-Appellees.

No. 93-3928.

United States Court of Appeals, Seventh Circuit.

Submitted April 21, 1995.

Decided Oct. 10, 1995.

Morton Nesses (submitted), Greenwood, IN, for Morton Nesses.

David F. Hurley, Carrie G. Doehrmann, Office of the Attorney General, Indianapolis, IN, for Randall T. Shepard, John T. Sharpnack, Wesley W. Ratliff, Jr., Brent E. Dickson, Richard M. Given, Jon D. Krahulik, John G. Baker, George B. Hoffman, Jonathan J. Robertson, Chris D. Monroe.

Roger O. DeBruler, Indiana State Supreme Court, Indianapolis, IN, pro se.

David J. Mallon, Jr., Ice, Miller, Donadio & Ryan, Indianapolis, IN, for Robert G. Weddle, Lloyd T. Wilson, Jr., Mary H. Watts, Tammy J. Meyer, Nana Quay-Smith, Bingham, Summers, Welsh & Spilman.

Before POSNER, Chief Judge, and FAIRCHILD and KANNE, Circuit Judges.

POSNER, Chief Judge.

The plaintiff in this suit under 42 U.S.C. Sec. 1983 had brought a suit for breach of contract in an Indiana state court and when he lost had sued the defendant's lawyers, also in an Indiana state court, alleging abuse of process, and had lost that suit too--plus a third suit, also against those lawyers, also in an Indiana state court, also lost. The present suit is against the same lawyers plus some of the judges at the different stages of the Indiana litigation. It alleges a massive, tentacular conspiracy among the lawyers and the judges to engineer Nesses' defeat by, among other things, declaring him inexcusably dilatory in complying with a discovery order. He claims that the lawyers for his opponent in the original suit for breach of contract used their political clout to turn the state judges against him. The district court dismissed the suit for want of jurisdiction on the basis of the "Rooker-Feldman" doctrine: a federal court other than the Supreme Court lacks jurisdiction to review a decision by a state court. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

Was Nesses seeking to review the decisions by the state court, in violation of Rooker-Feldman? This is a difficult question. He was in a sense attacking the ruling by the state court that he had been inexcusably dilatory in complying with a discovery order; he was in the same sense attacking the decisions themselves that dismissed his suit. Homola v. McNamara, 59 F.3d 647, 650 (7th Cir.1995), however, points out that the Rooker-Feldman doctrine, if it is to be kept distinct from res judicata (we remarked on the ease of confusing Rooker-Feldman with res judicata in GASH Associates v. Village of Rosemont, 995 F.2d 726, 728 (7th Cir.1993)), ought to be confined to cases in which the defendant in the state court is seeking to undo a remedial order of some sort (ordinarily a criminal conviction or an injunction). That is unmistakably a collateral attack on the state court's judgment. When a plaintiff seeks to relitigate a suit that has been decided against him, he is not so much attacking as trying to bypass the judgment in that suit; and the doctrine that blocks him is res judicata. It blocks Nesses, who had previously sued the lawyers twice (but of course once would have been enough for res judicata to operate as a defense) for the same wrongdoing, and lost.

It is true that the present suit contains allegations not found in the previous suits against the lawyers--namely that they also conspired with the trial judge in the second suit against the lawyers, which was brought after the first such suit had been dismissed. But this is just an allegation that an additional person was brought into a conspiracy that had already been adjudged not to exist. We do not think the preclusive effect of a prior judgment can be avoided by the facile expedient of claiming that the judge was a cat's paw of the winning party's lawyers, any more than it can be avoided by alleging simply the continuation of the conspiracy that formed the basis for the previous action. In re Dual-Deck Cassette Recorder Antitrust Litigation, 11 F.3d 1460, 1463-64 (9th Cir.1993); Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 517 F.2d 110, 114-15 (5th Cir.1975). Enough new misconduct must be alleged to support the claim without reference to the earlier misconduct. In Harkins Amusement Enterprises, Inc. v. Harry Nace Co., 890 F.2d 181 (9th Cir.1989), the allegation was that a fresh conspiracy had been formed. That is not alleged here. Merely adding another party to the allegation of a nonexistent conspiracy does not satisfy the requirement of alleging fresh misconduct, misconduct not dependent on the truth of a claim rejected in the previous suit.

We have grave doubts that Nesses has even stated a federal claim. For it is unclear, to say the least, that the U.S. Constitution can be thought to forbid the operation of politics in state judiciaries, which seems to be all that Nesses' claim amounts to. See Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir.1993). Most state judges are elected, some in partisan elections; the inevitable result is the injection of politics into the judicial process (see, e.g., Mark Hansen, "The High Cost of Judging," 77 ABAJ, Sept. 1991, p. 44); no one (well, almost no one; for see the very interesting article by Steven P. Croley, "The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law," 62 University of Chicago Law Review 689 (1995)) supposes that therefore the election of judges is unconstitutional. At some point politicization of the legal process might violate a litigant's rights under the free-speech or due process clauses of the Constitution--the judge might be a political enemy of the litigant, determined to rule against him in retaliation for his political views--but we cannot find any indication that this point was reached in the present case.

Furthermore, Nesses cannot show injury from the alleged conspiracy unless the decision dismissing his suit for breach of contract was erroneous. For suppose that although there was this nefarious conspiracy his suit had no merit and so would have failed even if there had been no conspiracy. Then the conspiracy did him no harm and without harm there is no tort, Niehus v. Liberio, 973 F.2d 526, 531-32 (7th Cir.1992), a principle as applicable to constitutional torts as to common law torts. Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir.1994). To show harm and thus keep the present suit alive, Nesses would have to show that the decision by the Indiana court in his suit for breach of contract was erroneous, and that, it may appear, Rooker-Feldman bars him from doing. But the doctrine is not that broad. Were Nesses merely claiming that the decision of the state court was incorrect, even that it denied him some constitutional right, the doctrine would indeed bar his claim. But if he claims, as he does, that people involved in the decision violated some independent right of his, such as the right (if it is a right) to be judged by a tribunal that is uncontaminated by politics, then he can, without being blocked by the Rooker-Feldman doctrine, sue to vindicate that right and show as part of his claim for damages that the violation caused the...