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March 17, 1975


The opinion of the court was delivered by: Perry, Senior District Judge.


Plaintiff Sally D. Dear filed an amended complaint in this case on July 9, 1974 for herself and as mother, guardian and next friend of her minor children, R. Cannon Dear and Jeffrey M. Dear (named as Co-Plaintiffs). The pro se complaint names four defendants and charges them with conspiracy and violations of plaintiffs' civil rights, committed under color of state law.

One of the named defendants is Ralph C. Dear, the former husband of Sally D. Dear. It appears from an affidavit of Sally D. Dear filed herein, and otherwise, that she was divorced from Ralph C. Dear in the Circuit Court of DuPage County, Illinois about five years before the time this alleged cause of action arose in August of 1967. Sometime after the divorce Ralph C. Dear married Phaebe Dear, who is also named a defendant in this action. On August 12, 1967 Ralph C. Dear was one of the owners of, and employed at, The Daily Journal, a daily paper published in Wheaton, Illinois. Prior to said August 12th Sally D. Dear and her two minor children began to picket The Daily Journal at its place of publication, 1 N 320 Schmale Road in Wheaton.

Plaintiffs charge in their amended complaint that defendants Ralph C. Dear, Phaebe Dear, his wife, James Atten, attorney for Ralph C. Dear, and the late Bertram J. Rathje,*fn1 at the time a judge of the Circuit Court for the Eighteenth Judicial Circuit, DuPage County, Illinois, conspired together and under color of law to unlawfully enjoin the plaintiffs from picketing and violated plaintiffs' constitutional rights by depriving them of their right to free speech, due process and equal protection of law, contrary to the First and Fourteenth Amendments to the Constitution of the United States. The complaint seeks damages under Title 42, Sections 1983, 1985 and 1988, of the United States Code.

More specifically, the amended complaint alleges that before a petition was filed for issuance of a Writ of Injunction, "defendant Rathje, signed an order finally adjudicating the cause which, for the benefit of the defendants Dear, enjoined the plaintiffs from picketing the premises of Dear Publication and Radio d/b/a The Daily Journal, in Wheaton, Illinois". It further alleges that at the time the order for injunction was signed, "no petition had been filed, no summons had been issued, no notice had been given, no hearing had been had, and no evidence had been offered, and the defendants, and each of them, knew full well, or should have known, that they were depriving plaintiffs of their rights to free speech and due process of law".

The defendants Dears have joined in a motion to strike and dismiss this action as to them; James Atten also has moved this court to strike and dismiss, and the Executor of the Estate of Bertram E. Rathje, deceased, has sought an order dismissing the amended complaint and action against the Rathje estate. In addition James Atten was given leave to file an affidavit and a short record of the proceedings in the DuPage County Circuit Court out of which this suit arose, including the petition for issuance of the injunction writ, Judge Rathje's order for issuance of the writ, and the injunction writ. Plaintiffs were given leave to file, and Sally D. Dear did file, a counter-affidavit. Plaintiffs also made various motions to strike the motions of the defendants and for other relief.

The court has heard oral argument in this matter on two occasions. Having considered plaintiffs' first amended complaint and all of the motions, responses, exhibits, affidavits, pleadings and arguments of the parties, the court has, under the circumstances, treated defendants motions to dismiss as motions for summary judgment and hereby enters its Memorandum Opinion and Order, which shall stand as its findings of fact and conclusions of law and a final order herein.

There is no difficulty in ascertaining the material facts as there is no controversy over them. It is an undisputed fact that Judge Rathje held court in his usual courtroom in the Circuit Court at Wheaton, Illinois on the morning of August 12, 1967 and that James Atten, acting as attorney for Ralph C. Dear, petitioned the court for issuance of an injunction writ against Sally D. Dear and the two minor children to restrain them from picketing and coming upon the premises of The Daily Journal, where Sally D. Dear's former husband, Ralph C. Dear was employed and in which company he was an officer and part owner. The petition bore the same case number as the original divorce suit. There was a hearing and no notice thereof was given to Sally D. Dear. Judge Rathje then signed an order calling for the issuance of a writ of injunction, commanding Sally Dear, Ralph Cannon Dear and Jeffrey Dear to desist and refrain from "going near or upon the premises" occupied by The Daily Journal and "from picketing or otherwise disturbing or harassing any customers, employees or other persons going to and from defendant's employer, The Daily Journal". Both the petition and order were time-stamped by the Clerk of the 18th Judicial Circuit at 9:31 A.M. on August 12, 1967 and docketed.

Judge Rathje's order directed the issuance of a writ of injunction "forthwith" and the Clerk of the Court then issued the injunction writ on August 12, 1967. In said injunction writ the Clerk erroneously stated that the order, pursuant to which the writ issued, had been entered on August 11, 1967. That same day, August 12, 1967, a copy of the injunction writ was served upon Sally D. Dear by the Sheriff of DuPage County through one of his deputies.

Sally D. Dear did not move or petition Judge Rathje to vacate or modify the injunction order; instead, three days later on August 15, 1967, she filed a notice of appeal to the Appellate Court of Illinois, Second District; and she thereafter perfected said appeal. Ralph C. Dear did not appear before the Appellate Court and was defaulted.*fn2 Defendants are not charged with taking, nor did they take, any action after the Appellate Court's order of reversal.

Defendants Ralph C. and Phaebe Dear are not charged with being officials of the State of Illinois or any of its subdivisions. Nor is James Atten charged with being an officer of the State of Illinois or any of its subdivisions except by virtue of the fact that he was an attorney at law, representing Ralph C. Dear. None of these said defendants are charged with holding himself or herself out as being officers of the State of Illinois or any subdivision thereof except the late Bertram E. Rathje, as a judge, and James Atten, as an attorney at law representing Ralph C. Dear.

Defendants contend that none of the counts in the amended complaint alleges those facts upon which relief can be granted. Although Judge Rathje is charged with being an official of the State of Illinois and acting under color of law, defendants in their motions and argument contend that Judge Rathje acted toward plaintiffs in his judicial capacity and within his jurisdictional authority, pursuant to a request for an injunction, and that this cause having been brought under the Civil Rights Acts of 1871 is barred as to him by the doctrine of judicial immunity. Defendants also argue that James Atten was not an officer of the State of Illinois or any subdivision thereof; that he was a private attorney representing litigant Ralph C. Dear; that as a private attorney he was only a limited officer of the court, solely for the purpose of aiding the court in carrying out the court's order; and that, therefore, whatever he did he did as a private attorney representing Ralph C. Dear and not as an officer of the court within the meaning of 42 U.S.C. § 1983. Defendants Ralph C. Dear and Phaebe Dear are private citizens. Defendants also contend that they did not conspire to deprive plaintiffs of their rights under 42 U.S.C. § 1983 for the reason that Ralph C. Dear and his attorney only exercised a legal right to file a petition before the Circuit Court in a legal manner and that such exercise of a legal right cannot be a conspiracy. Defendants further contend that there is no jurisdiction over them under 42 U.S.C. § 1988.


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