Walker v. Kruse
| Decision Date | 20 August 1973 |
| Docket Number | No. 72-1346.,72-1346. |
| Citation | 484 F.2d 802 |
| Parties | Gerald Daniel WALKER, Plaintiff-Appellant, v. Earl Joseph KRUSE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jerold S. Solovy and Richard C. Bollow, Chicago, Ill., for plaintiff-appellant.
Tom L. Yates, Robert Guritz, Chicago, Ill., for appellee.
Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
Plaintiff appeals from an order dismissing his malpractice action against a lawyer who was appointed to provide him with legal advice in defending a charge of attempted murder and aggravated battery. Plaintiff was found guilty in November, 1969, and sentenced to the Illinois State Penitentiary for a term of 16 to 20 years. In this litigation he accuses the defendant of negligence in failing to carry out various requests which plaintiff made before, during, and after the criminal trial. After deciding preliminary motions, the district court dismissed the complaint, holding that a civil action questioning the competency of defendant's professional services should not go forward until plaintiff had exhausted state procedures, including habeas corpus, whereby his criminal conviction might be overturned on that ground. In effect, the district court dismissed the complaint on abstention grounds.
We believe the lower court should not have abstained. Jurisdiction is based on diversity of citizenship, and the complaint raises only issues of state law. Except in extraordinary situations, federal courts should not abstain from deciding state law issues in diversity cases. See Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9.
Moreover, after the district court's decision, the Illinois Supreme Court affirmed plaintiff's conviction and denied his petition for writ of habeas corpus. Walker v. Pate, 53 Ill.2d 485, 292 N.E.2d 387 (1973). Therefore, even if the basis for the district court's action were correct, there no longer is any reason why this matter should not be decided. We are convinced that the Illinois courts would dismiss this action on any of several grounds.
We are assured by counsel that the competency of counsel question was raised on appeal, but the Supreme Court's exhaustive opinion never specifically addressed it. Apparently the court saw no merit in it whatsoever: "There are other contentions which the defendant makes, but the clear want of merit in them warrants our not formally discussing them in detail in this already lengthy opinion." Id. at 399. This holding by the Illinois Supreme Court might very well bar relief in plaintiff's malpractice action. Plaintiff correctly observes that the standard of proof in a malpractice action might not be as strenuous as it is when questioning the constitutional adequacy of counsel. However, there is sufficient similarity that an Illinois civil court might dismiss the complaint when the Supreme Court has found a "clear want of merit" in the contention.
Alternatively, the Illinois courts might require an allegation of innocence. On the record before us we must assume that plaintiff is in fact guilty of the crime of which he was convicted. He does not allege otherwise; he primarily contends that his conviction might have been avoided if the defendant had complied with certain tactical requests relating to the possible suppression of incriminating evidence. In these circumstances, it is questionable whether the Illinois courts would conclude that the defendant's alleged professional shortcomings proximately caused an injury to the plaintiff which entitles him to damages. An Illinois court might well hold, as a matter of law, that a criminal conviction cannot support a malpractice claim unless the plaintiff is able to establish his actual innocence.1
Illinois also has a firmly established policy of requiring the plaintiff advancing a negligence claim to plead and prove his own freedom from contributory negligence.2 In view of the rather unusual relationship between plaintiff and defendant during the criminal proceedings, it is doubtful that plaintiff could satisfy this requirement. The references to the criminal trial which are before us make it quite plain that plaintiff retained control of his own defense and utilized defendant's assistance only as he pleased; he did not...
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...in a malpractice action might not be as strenuous as it is when questioning the constitutional adequacy of counsel." Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973). It could be argued that this court's conclusion on appeal that McCord's allegations "taken as true do not make a case for dislo......
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...to a single litigant as to how best his interests may be advanced. Minns v. Paul, 542 F.2d 899, 901 (4th Cir.1976). See Walker v. Kruse, 484 F.2d 802, 804 (7th Cir.1973) (“[T]here are strong reasons of policy ... to hold that a lawyer, who has been appointed ... in the defense of an indigen......
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...of the sovereign creating it for a determination of its nature and scope." 483 Pa., 90, 93, 394 A.2d 553, 555 (1978). 11 Cf. Walker v. Kruse, 484 F.2d 802 (CA7 1973). 12 See Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979), n. 8, supra. 13 When federal law is the source of the plaintiff'......
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