Ruffalo v. Civiletti, 80-0675-CV-W-6.

• Decision Date: 26 May 1983
• Docket Number: No. 80-0675-CV-W-6.,80-0675-CV-W-6.
• Citation: 565 F. Supp. 34
• Parties: Michael RUFFALO, Jr., et al., Plaintiffs, v. Benjamin CIVILETTI, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

565 F. Supp. 34

Michael RUFFALO, Jr., et al., Plaintiffs, v. Benjamin CIVILETTI, et al., Defendants.

No. 80-0675-CV-W-6.

United States District Court, W.D. Missouri, W.D.

May 26, 1983.

Jack Novik, A.C.L.U., George Kannar, Children's Rights Project, A.C.L.U., New York City, Sanford Krigel, Krigel, Perlstein & Krigel, Kansas City, Mo., for plaintiffs.

Mark Zimmermann, Asst. U.S. Atty., Kansas City, Mo., George E. Kapke, Independence, Mo., for defendants.

MEMORANDUM AND ORDER GRANTING VISITATION AND COMMUNICATION RIGHTS UNDER SECURITY ARRANGEMENTS AND DENYING REQUEST FOR RETURN OF CHILD TO MOTHER'S CUSTODY

SACHS, District Judge.

Before the Court and ready for ruling is plaintiff Donna Ruffalo's claim for injunctive relief, in which she seeks an order requiring her former husband Michael Ruffalo, Sr. (Michael) and the federal defendants to return her son Michael Ruffalo, Jr. (Mike) to her custody in Kansas City.¹ Most of the relevant issues have been previously addressed by this Court, 539 F.Supp. 949 (W.D.Mo.1982), and by the Court of Appeals, 702 F.2d 710 (8th Cir.1983), in connection with Donna's motion for partial summary judgment. The case has been remanded to this Court from the Court of Appeals for a prompt hearing and determination of two issues. We understand the Court of Appeals to have held that Donna is entitled to the relief sought, unless it is concluded that (1) Donna is not litigating in good faith, but is motivated in whole or in part by an objective of assisting criminal elements in Kansas City to locate and kill Michael, or (2) unavoidable dangers to Michael or Mike,² incident to a return to Donna's custody, should cause the Court to stay its hand or alter the relief granted.

Although this case has been pending for almost three years, counsel for the parties, particularly Donna, engaged in extensive discovery immediately prior to the hearing, which was held on May 6 and 7, 1983. The parties thereafter requested extensions in a briefing schedule, and submitted their post-hearing briefs and proposed decrees on May 25, 1983. At this time, we decide the two issues considered at the hearing. Both will be ruled, in large part, in favor of the defendants. The rulings are based on the peculiar facts of this case and will not, in the Court's opinion, establish a significant precedent barring equitable relief to other parents whose children have been taken into the Witness Protection Program without parental consent, prompt compliance with state law, or other due process.

GOOD FAITH

Consideration of the issue of Donna's good faith in bringing this action may be likened to consideration of an "unclean hands" defense as a bar to equitable relief. Such a defense is generally not favored; it avoids the merits of the controversy and may be subject to abuse. The Court is persuaded, however, that the unclean hands defense bars the complete equitable relief sought in this case.

The most significant evidence on this question was the testimony of defendants' witness Bobby Gene Jones. Jones, a protected witness formerly active in the Kansas City organized crime community, testified that on four occasions during the course of this litigation he transmitted money to Donna, totalling perhaps $1,100, from underworld figures who were attempting to use the litigation or a result favorable to Donna to lure Michael into danger. The payments were said by Jones to be initiated by a person described as the current "boss" of the "Kansas City Mafia" or La Cosa Nostra (LCN),³ who was also quoted in testimony by Michael as informing him that "you can't get away from us ... you have got that kid of yours." (Tr. 267). The Jones testimony came in with considerable detail, and little cross-examination. It must be considered controlling if credible.

Donna flatly denied the payments. (Tr. 363). Her testimony was impeached in several respects and was generally less credible in tone and manner than that of Jones. It is concluded that, more probably than not, Donna has been receiving payments to encourage her to litigate. If so, there can be little doubt that she knows that her actions are being rewarded because they may bring about the death of her former husband (Tr. 69-70, 75, 93, 98-99). If any other reason for the payments could be supposed, it has not been presented by Donna.

In addition to the Jones testimony, defendants presented evidence showing less than normal maternal behavior by Donna in the past. It is unnecessary to detail this evidence, which relates primarily to Donna's daughter, Angela, but also related to Mike. The primary thrust of the evidence was that with Donna's permission or on her initiative, her children have lived with other individuals, and not with her, for much of their lives.

The evidence as to Donna's relationship with her children in the past raises some skepticism regarding her motives in seeking the return of Mike. This is the first time in a number of years that Donna has indicated a desire to have responsibility for one of her children full-time. Still, we are persuaded that she does have significant maternal feelings toward Mike and does have a genuine desire to have him returned. Even Michael conceded that Donna loves Mike and wants him back, at least temporarily.

The Court is unaware, however, that any court of equity has granted or has been tempted to grant full equitable relief when the litigation is tainted, as in this case, by the acceptance of even minor funding from persons with a murderous intent known to plaintiff. This litigation is being subsidized as the vehicle of intended homicide.^* While the compensation is small, the federal defendants have shown that Donna has an implied understanding with individuals intending harm to Michael. Nonetheless, while there is no known precedent for this bizarre situation, it is the Court's view that even a wicked mother has some rights that should be respected. While full equitable relief would be rejected because of unclean hands, alone, Donna's claim to visitation and communication rights will be granted.

DANGER

As the Court of Appeals has noted, "the constitutional rights involved here are not absolute, in the sense that they must prevail at all times and in all places against every competing consideration." 702 F.2d at 718-19. A major competing consideration to be examined is whether granting the injunctive relief sought by Donna would result in an excessive risk of danger to Mike. See Drollinger v. Milligan, 552 F.2d 1220, 1227 (7th Cir.1977). The federal defendants attempted, unsuccessfully, to establish that the families of informants, if left unprotected, are generally in grave danger of retaliation.⁴ Danger to children appears to be the rare exception and not the rule.⁵ However, past violence against innocent women and children in Kansas City from LCN sources seems probably to have occurred occasionally and is accepted by law enforcement officers having expertise and responsibility. In this case, a specific threat against Mike from the reputed LCN "boss" has been testified to convincingly by Michael (Tr. 267). An additional threat, even more pointed, to "stick (Mike) in a well" should Michael "go wrong" was voiced by Arthur Eugene Shepherd, an individual subsequently imprisoned as a result of...