Redwood, Erik v. Dobson, Elizabeth

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4324 & 06-1165
ERIK REDWOOD and JUDE REDWOOD,
Plaintiffs-Appellants,
Cross-Appellees,
v.
ELIZABETH DOBSON and HARVEY CATO WELCH,
Defendants-Appellees,
and
MARVIN IRA GERSTEIN,
Defendant-Appellee,
Cross-Appellant.
____________
Appeals from the United States District Court
for the Central District of Illinois.
No. 00-2305—Michael P. McCuskey, Chief Judge.
____________
ARGUED JANUARY 8, 2007—DECIDED FEBRUARY 7, 2007
____________
Before EASTERBROOK, Chief Judge, and ROVNER and
WOOD, Circuit Judges.
EASTERBROOK, Chief Judge. This is a grudge match.
Harvey Cato Welch represented Erik Redwood in a
criminal prosecution for battery. Redwood was convicted
2 Nos. 05-4324 & 06-1165
and maintains that Welch is at fault. Redwood wants
Welch to sign an affidavit confessing that he supplied
ineffective assistance; he believes that with such an
affidavit he could have his criminal record expunged.
Welch, who believes that his legal work met professional
standards, has refused to fall on his sword for Redwood’s
benefit. Redwood has retaliated by insulting Welch in
public, calling him, among other things, a “shoe-shine
boy.” Redwood is white and Welch black; Welch believes
that this phrase, when spoken to an adult, is a racial slur.
During October 1998 a scuffle occurred after Redwood
again called Welsh a “shoe-shine boy.” Redwood filed a
battery suit in state court; Welch filed a defamation
counterclaim and asked the State’s Attorney to prosecute
Redwood for inciting a breach of the peace. Erik Redwood
was represented in that litigation by attorney Jude
Redwood, his wife, who also is a plaintiff in the federal
suit. Elizabeth Dobson, an Assistant State’s Attorney,
decided that Erik Redwood had committed a hate crime
by using a demeaning term that led to a physical con-
frontation. Officer Troy Phillips of the Urbana Police
Department presented the evidence to the grand jury,
which returned an indictment. Attorney Marvin Gerstein,
representing Welch in the civil litigation, later wrote to
Jude Redwood suggesting that, if the litigation could be
resolved amicably, he would try to persuade Dobson to
dismiss the criminal charge. The Redwoods rejected that
offer. The civil case went to trial; while the jury was
deliberating, the parties reached a settlement. Meanwhile
the criminal prosecution had been dismissed on the
ground that the state’s hate-crime law does not apply to
speech that does not threaten immediate physical injury.
See People v. Redwood, 335 Ill. App. 3d 189, 780 N.E.2d
760 (4th Dist. 2002).
While the prosecutor’s appeal in the criminal prosecu-
tion was pending, the Redwoods filed this federal action
Nos. 05-4324 & 06-1165 3
against Dobson, Welch, Gerstein, Phillips, and the City of
Urbana. The complaint, signed by Jude Redwood as
counsel (she is also a plaintiff, alleging loss of consortium)
accuses the five defendants of violating the first amend-
ment by discriminating against Erik Redwood’s religion
(which, he maintains, leads him to “teach truth and
righteousness to all persons, including defendant Harvey
Welch”, a curious euphemism for personal insults) and of
conspiracy to maintain a malicious prosecution. These
acts are alleged to violate 42 U.S.C. §1983 and §1985,
though the Redwoods have never tried to explain why
a state may not apply a rule that is neutral with respect
to the speaker’s religion. See Employment Division v.
Smith, 494 U.S. 872 (1990); cf. Wisconsin v. Mitchell, 508
U.S. 476 (1993). The complaint also presents several
claims under state law.
Urbana settled the litigation for nuisance value. After
extended discovery, the district court granted summary
judgment for the four other defendants. Phillips prevailed
as a result of the absolute immunity that applies to
witnesses in criminal proceedings. See Briscoe v. LaHue,
460 U.S. 325 (1983). The Redwoods have abandoned
their claims against him but appeal with respect to the
remaining three defendants. The Redwoods also appeal
from the denial of their motion for sanctions in discovery,
Gerstein has filed a cross-appeal to protest the district
court’s denial of his motion for attorneys’ fees, and
both sides ask us to award sanctions for what they call
frivolous arguments in this court.
Dobson, Welch, and Gerstein are right to label most
of the Redwoods’ appellate arguments as frivolous. “Mali-
cious prosecution” is not a constitutional tort indepen-
dent of complaints about wrongful arrest and detention,
and Erik Redwood was never placed in custody. See
Albright v. Oliver, 510 U.S. 266 (1994); Newsome v.
McCabe, 256 F.3d 747 (7th Cir. 2001). Dobson’s decision to
4 Nos. 05-4324 & 06-1165
commence a criminal prosecution is covered by absolute
immunity. See Imbler v. Pachtman, 424 U.S. 409 (1976).
Although the plaintiffs insist that Dobson is being sued
for administrative rather than prosecutorial duties, the
only “administrative” act about which they complain is
her decision to put Phillips before the grand jury as a
summary witness, rather than to call Welch. That’s
precisely the kind of prosecutorial decision that im-
munity protects. Unlike activity of the sort at issue in
Buckley v. Fitzsimmons, 509 U.S. 259 (1993)—such as a
prosecutor’s personal conduct of an interrogation, or a pre-
litigation search or seizure—the choice of witnesses to
present is part of the prosecutorial function and cannot
independently violate anyone’s rights (as a search or
seizure might do).
As the complainant in the criminal prosecution, Welch
lacks absolute immunity, see Kalina v. Fletcher, 522 U.S.
118 (1997), but he’s not a state actor and so can’t be liable
under §1983 in the first place. That is why the Redwoods
invoke 42 U.S.C. §1985(3), which covers conspiracies
between public and private actors. But where’s the con-
spiracy? Plaintiffs treat all contact between prosecutors
and complaining witnesses as “conspiracy.” The minimum
ingredient of a conspiracy, however, is an agreement to
commit some future unlawful act in pursuit of a joint
objective. See United States v. Lechuga, 994 F.2d 346 (7th
Cir. 1993) (en banc). The record in this case would not
permit reasonable jurors to conclude that Welch and
Dobson had a joint objective, let alone that they agreed
to pursue it through unlawful acts. Welch complained to
the prosecutor, seeking an end to what he deemed racist
harassment; Dobson acted as she conceived the public
interest to require. Dobson had no reason to do any favors
for Welch and received nothing (except this lawsuit) in
return for her official actions. No prosecutor handles a
case in an isolation tank. Discussions with victims,
Nos. 05-4324 & 06-1165 5
witnesses, and police are common. If these ordinary acts
amount to “conspiracy” to violate the Constitution, then
immunities will be worthless and both witnesses and
prosecutors would be induced to remain passive rather
than enforce the criminal law vigorously.
Then there is Gerstein, whose only role was to represent
Welch in the tort litigation, and neither §1983 nor §1985(3)
applies to that private activity. The Redwoods believe
that Gerstein acted unethically by offering to contact
Dobson and ask her to dismiss the criminal charge as
part of a settlement. Whether or not that step was appro-
priate as a matter of legal ethics in Illinois, it does not
violate any rule of federal law—for so far as §1983 and the
Constitution are concerned, criminal charges may be
dismissed in order to facilitate civil settlement. See
Newton v. Rumery, 480 U.S. 386 (1987). Calling the offer
“extortion,” as the plaintiffs do, does not make it so, as
Newton demonstrates. See also Dye v. Wargo, 253 F.3d 296(7th Cir. 2001). If Gerstein acted wrongfully in suggest-
ing a global resolution, the Redwoods’ remedy lay in the
state court handling the civil litigation (to which they
never complained), or the Attorney Registration and
Disciplinary Commission of Illinois (to which they did),
rather than in a federal lawsuit.
The only reason why the Redwoods’ appeal is not wholly
frivolous is that the district court dismissed the state-law
claims on the merits rather than relinquishing supple-
mental jurisdiction. A court that resolves all federal
claims before trial normally should dismiss supplemental
claims without prejudice. 28 U.S.C. §1367(c)(3). That both
sides have allowed animosity to get the better of legal
judgment, however, implies the wisdom of bringing the
contretemps to a conclusion in a single forum. The state-
law claims were not complex. On appeal, the Redwoods
treat them as replays of the federal claims, and their
principal argument is that a jury could find a conspiracy
6 Nos. 05-4324 & 06-1165
among the defendants. As we have rejected that argu-
ment with respect to the federal theories, it fails for state-
law theories as well.
A profusion of motions and cross-motions for sanc-
tions—and the conduct underlying some of these mo-
tions—demonstrates the extent to which counsel have
allowed personal distaste to displace dispassionate legal
analysis. Most depositions are taken without judicial
supervision. Witnesses often want to avoid giving answers,
and questioning may probe sensitive or emotionally
fraught subjects, so unless counsel maintain professional
detachment decorum can break down. That happened
here; the results were ugly.
Gerstein’s deposition was taken by Charles L. Danner
on behalf of both Redwoods, though Jude Redwood at-
tended and sometimes acted as counsel in addition to her
role as a plaintiff. Gerstein’s counsel was Roger Webber,
though Gerstein himself peppered the transcript with
legal arguments. The deposition began badly when Danner
spent the first 30 pages or so of the transcript exploring
Gerstein’s criminal record—mostly vehicular violations.
Danner made no effort to explain how these questions
could lead to admissible evidence, and they got under
Gerstein’s skin. After Gerstein spontaneously refused to
answer some of the questions (remarking “That’s none
of your business”), Webber began instructing Gerstein not
to answer.
Webber gave no reason beyond his declaration that the
questions were designed to harass rather than obtain
information—which may well have been their point, but
Fed. R. Civ. P. 30(d) specifies how harassment is to be
handled. Counsel for the witness may halt the deposition
and apply for a protective order, see Rule 30(d)(4), but
must not instruct the witness to remain silent. “Any
objection during a deposition must be stated concisely
Nos. 05-4324 & 06-1165 7
and in a non-argumentative and non-suggestive manner.
A person may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a
limitation directed by the court, or to present a motion
under Rule 30(d)(4).” Fed. R. Civ. P. 30(d)(1). Webber
violated this rule repeatedly by telling Gerstein not to
answer yet never presenting a motion for a protective
order. The provocation was clear, but so was Webber’s
violation.
Danner then turned to Gerstein’s troubles with the
state bar, another topic whose relevance (or ability to lead
to relevant evidence) has never been explained. Gerstein
was censured for misconduct in 1991 and suspended for
a month in 2002. Although the reasons are matters of
public record, Danner demanded that Gerstein confess
them in the deposition; Gerstein professed inability to re-
member, and when Danner inquired whether Gerstein had
been ordered to obtain psychiatric counseling or anger-
management therapy, Webber again told him not to
answer. Richard Klaus, representing Dobson, opined that
Danner had committed a misdemeanor under Illinois
law by asking questions about Gerstein’s mental health.
What happened next must be set out in full to be be-
lieved:
Q [by Danner]. Mr. Gerstein, have you ever
engaged in homosexual conduct?
MR. WEBBER: Objection, relevance.
MR. KLAUS: I join.
MR. WEBBER: I believe it violates Rule 30, and
I’m instructing him not to answer the question.
A. I’m not answering the question.
MR. KLAUS: I join the objection.
8 Nos. 05-4324 & 06-1165
Q. Mr. Gerstein, are you involved in any type of
homosexual clique with any other defendants
in this action?
MR. WEBBER: Same objection. Same instruction.
MR. KLAUS: I join the objection.
Gerstein would have been entitled to stalk out of the room.
Webber justifiably could have called off the deposition and
applied for a protective order (plus sanctions). Fed. R. Civ.
P. 26(c), 30(d)(3), (4). Instead he told Gerstein not to
answer, which was untenable as no claim of privilege had
been advanced.
After a brief recess, Gerstein acquired “amnesia” and
started playing word games.
Q. During the last recess that we had that we just
reconvened from, did you consult with your
attorney concerning this deposition?
Instead of asserting the attorney-client privilege, a genu-
ine reason not to answer (though perhaps consultation
would have violated an order that the deposition be
conducted without such conferences), Gerstein played
dumb.
A. I don’t understand the question.
Q. We just had a recess.
A. I understand that.
Q. Do you understand that? During that recess
period, did you take that time to consult with
your attorney regarding this deposition?
A. I don’t know what you mean by the word
consult.
Q. Did you speak with your attorney regarding
this deposition?
Nos. 05-4324 & 06-1165 9
A. I don’t think so. I don’t know.
Q. Do you know how—did you write anything to
your attorney during that recess?
A. Write anything?
Q. Correct.
A. No.
Q. Did you speak with your attorney during that
recess?
A. I had words with my attorney. We exchanged
a conversation.
Q. Were those conversations—or strike that. Did
any of the comments in that conversation or
those conversations refer to any aspect of this
deposition?
A. I can’t recall.
The deposition fills a further 98 pages of transcript,
unedifying to the end. At one point Danner asked whether
the secretary who had typed the letter in which Gerstein
offered to ask Dobson to dismiss the criminal prosecu-
tion was married; Webber instructed Gerstein not to
answer. Danner asked whether the secretary had chil-
dren; before Webber could leap in, Gerstein replied that
she did. What this—indeed, what most of Danner’s
questions—had to do with the legal proceeding against
Gerstein is unfathomable. Plaintiffs say that Gerstein once
gave Danner “the finger,” and though the transcript does
not reflect that gesture the proceedings were heated
enough that this could well have happened. (Gerstein
does not deny this accusation; a video tape of the deposi-
tion was made, but we have not consulted it.)
Danner’s conduct of this deposition was shameful—not
as bad as the insult-riddled performance by Joe Jamail
10 Nos. 05-4324 & 06-1165
that incensed the Supreme Court of Delaware, see Para-
mount Communications Inc. v. QVC Network Inc., 637 A.2d
34, 52-57 (Del. 1994), but far below the standards to which
lawyers must adhere. Gerstein, Webber, and Klaus were
goaded, but their responses—feigned inability to remem-
ber, purported ignorance of ordinary words (the “consult”
episode was not the only one), and instructions not to
respond that neither shielded a privilege nor supplied
time to apply for a protective order—were unprofessional
and violated the Federal Rules of Civil Procedure as well
as the ethical rules that govern legal practice.
At one point, after Jude Redwood said that, because
this was a deposition rather than a trial, Danner was
entitled to fish for evidence whether or not the answers
would be admissible, Klaus replied: “[T]his is not a
discovery deposition. There’s no such distinction or
dichotomy under the federal rules. Everything that is
asked here must meet the standard of the federal rules of
evidence.” Klaus either did not know, or did not care, that
discovery may be used to elicit information that will
lead to relevant evidence; each question and answer
need not be one that could be one that would itself be
proper at trial. But Danner’s questions had ventured so far
beyond the pale that overstatement on the other side was
inevitable.
When the Redwoods sought sanctions in the district
court, the judge declared that everyone had behaved
badly and that, because Danner was the greater offender,
no sanctions would be appropriate. The district judge
remarked that it was “ludicrous” for the Redwoods to
argue that lawyers may not instruct witnesses not to
answer. Given Rule 30(d)(1), however, the Redwoods had
(and have) a meritorious position on this issue.
Mutual enmity does not excuse the breakdown of
decorum that occurred at Gerstein’s deposition. Instead of
Nos. 05-4324 & 06-1165 11
declaring a pox on both houses, the district court should
have used its authority to maintain standards of civility
and professionalism. It is precisely when animosity runs
high that playing by the rules is vital. Rules of legal
procedure are designed to defuse, or at least channel into
set forms, the heated feelings that accompany much
litigation. Because depositions take place in law offices
rather than courtrooms, adherence to professional stan-
dards is vital, for the judge has no direct means of control.
Sanctions are in order, but they need not be monetary.
See Fed. R. Civ. P. 30(d)(3), 37(a)(4), (b)(2). Because the
arguments pro and con have been fully ventilated in this
court, and none of the attorneys has asked for a hearing
under Fed. R. App. P. 46(c), we see no need to drag out
this controversy with a remand. Attorneys Danner,
Gerstein, and Webber are censured for conduct unbecom-
ing a member of the bar; attorney Klaus is admonished.
(We differentiate in this way because a censure is the
more opprobrious label, see In re Charge of Judicial
Misconduct, 404 F.3d 688, 695-96 (2d Cir. 2005), and
Klaus’s misconduct is substantially less serious than that
of the other lawyers.) Any repetition of this performance,
in any court within this circuit, will lead to sterner
sanctions, including suspension or disbarment.
We are not done with motions and cross-motions for
sanctions and other relief. Gerstein has asked us to
penalize the Redwoods under Fed. R. App. P. 38 for taking
a frivolous appeal. As we have explained, the Redwoods’
principal arguments on the merits were frivolous, but their
appeal with respect to discovery sanctions has been
successful. Although we have the discretion to award
Rule 38 sanctions issue-by-issue as well as appeal-by-
appeal, we elect not to do so because fault is widely
distributed. It should be plain to the Redwoods from what
we have said, however, that any effort to resume this
spite contest under another legal theory would not be in
12 Nos. 05-4324 & 06-1165
their financial interest (and would jeopardize Jude Red-
wood’s future ability to practice law in federal court).
In addition to asking for sanctions in response to the
Redwoods’ appeal, Gerstein filed a cross-appeal to contest
the district court’s order denying his motion in that
forum for attorneys’ fees under 42 U.S.C. §1988. Such
awards in a defendant’s favor are proper only if the suit
is frivolous or vexatious. See Christiansburg Garment Co.
v. EEOC, 434 U.S. 412 (1978). The Redwoods responded
with a Rule 38 motion of their own, asking us to award
attorneys’ fees in their favor on the theory that Gerstein’s
cross-appeal is frivolous. In a small concession, Gerstein
has not asked for fees under Rule 38 on the theory that
the Redwoods’ Rule 38 motion is frivolous; perhaps he
fears infinite regress.
Any defendant who seeks fees under §1988 for the cost
of defense in the district court has a tough row to hoe, for
two reasons—the legal rule that §1988 creates is asym-
metric in plaintiffs’ favor, see Hughes v. Rowe, 449 U.S. 5(1980), and appellate review of the district court’s decision
is deferential. See Webb v. Board of Education, 471 U.S.
234 (1985). The district judge did not abuse his discretion.
As we’ve mentioned, the state-law claims presented under
the supplemental jurisdiction were not as fatuous as those
arising under federal law. Although we would have been
inclined to award sanctions were the decision ours to
make, it is not; discretion includes the freedom to take
decisions other than the appellate tribunal’s first prefer-
ence.
Finally, we have multiple motions to strike portions of
the opposing side’s briefs. The Redwoods asked this court
to strike parts, if not all, of the statement of facts in
Dobson’s brief; Gerstein asked us to strike parts, if not all,
of the statement of facts in the Redwoods’ brief. Each
motion—which was deferred by a motions panel to the
Nos. 05-4324 & 06-1165 13
hearing on the merits—asserts that statements in the
other side’s brief misrepresent the record. And each mo-
tion was met, first, with a defense of the brief ’s accuracy
and, second, with a motion under Rule 38 for sanctions
for filing a frivolous motion to strike.
Each of the motions to strike was indeed frivolous, for
the reasons given in Custom Vehicles, Inc. v. Forest River,
Inc., 464 F.3d 725 (2006) (Easterbrook, J., in chambers).
The Federal Rules of Appellate Procedure provide a
means to contest the accuracy of the other side’s state-
ment of facts: that means is a brief (or reply brief, if the
contested statement appears in the appellee’s brief ), not a
motion to strike. Motions to strike sentences or sections
out of briefs waste everyone’s time. They go to a motions
panel, which does not know (and cannot efficiently learn)
which statements are accurate depictions of the record
and, if erroneous, whether the error is legally material.
If the motions panel defers decision to the hearing on the
merits, as was done here, then the motion does nothing
except increase the amount of reading the merits panel
must do, effectively giving each side argument on top of
the word limit set by Fed. R. App. P. 32. Motions to
strike words, sentences, or sections out of briefs serve no
purpose except to aggravate the opponent—and though
that may have been the goal here, this goal is not one
the judicial system will help any litigant achieve. Motions
to strike disserve the interest of judicial economy. The
aggravation comes at an unacceptable cost in judicial time.
These motions were filed before the opinion in Custom
Vehicles issued, however, and therefore are not appropri-
ate grounds of monetary sanctions. (It is too late to count
the motion toward the allowable length of the brief, the
sanction adopted in Custom Vehicles.) Future motions
of this kind will not be so charitably received.
The judgment is affirmed. Attorneys Charles L. Danner,
Marvin Ira Gerstein, and Roger B. Webber are censured
14 Nos. 05-4324 & 06-1165
for conduct unbecoming a member of the bar, and attorney
Richard Klaus is admonished for conduct unbecoming a
member of the bar.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-7-07