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OFFUTT v. BERMAN

April 12, 1995

NARDA C. OFFUTT, Individually and on behalf of KRISTINE J. OFFUTT, a minor, Plaintiffs,
v.
THE HONORABLE JUDGE JORDAN KAPLAN AUTHUR M. BERMAN, HOWARD BERNSTEIN, and GERALD MOODY OFFUTT, Defendants.



The opinion of the court was delivered by: BLANCHE M. MANNING

 I. INTRODUCTION.

 Plaintiff, Attorney Narda Cisco Offutt (hereinafter "Mrs. Offutt"), on her own behalf Pro Se and on behalf of her minor child, Kristine J. Offutt (hereinafter "Kristine"), filed the instant action in July 1994, alleging that defendants, the Honorable Judge Jordan Kaplan (hereinafter "Judge Kaplan"), who formerly presided in custody proceedings involving Kristine in the Circuit Court of Cook County, Gerald Offutt (hereinafter "Mr. Offutt"), Mrs. Offutt's former husband and father of Kristine, Howard Bernstein (hereinafter "Mr. Bernstein"), guardian ad litem, for Kristine and Arthur M. Berman (hereinafter "Mr. Berman"), Mr. Offutt's attorney in the custody proceedings, violated plaintiffs' civil rights in connection with custody proceedings which continue to pend in the Circuit Court of Cook County.

 Plaintiffs seek a writ of mandamus against Judge Kaplan directing him to vacate the appointment of Mr. Bernstein as guardian ad litem, as well as other orders, for entry of an order staying proceedings in Offutt v. Offutt, case number 87D20050, filed in the Circuit Court of Cook County, and for entry of a judgment against all the defendants in the sum of $ 50 million dollars for damages, punitive damages and costs. Plaintiffs allege that defendants violated their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and 28 U.S.C. 1983, and invoke jurisdiction pursuant to 28 U.S.C. 1651, 28 U.S.C. 1343, 1332, 1331 and the Civil Rights Act of 1964, as amended, (42 U.S.C. 2000 et. seq.).

 This matter is before the court on defendants' motions to dismiss this action, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

 II. PROCEDURAL HISTORY.

 Narda Cisco Offutt and Gerald Moody Offutt were married in Chicago, Illinois in April of 1982. On August 28, 1984, Kristine, their daughter was born. On October 22, 1987, Mr. Offutt filed a petition in the Circuit Court of Cook County for dissolution of the marriage and for custody of Kristine. Mr. Berman represented Mr. Offutt at the outset of that action and continues to do so. In June 1992, Mr. and Mrs. Offutt entered into a joint parenting agreement (hereinafter "Agreement"). The Judgment for Dissolution of Marriage and a Supplemental Judgment for Dissolution of Marriage were merged and the court retained jurisdiction of the cause.

 Subsequent to the entry of the parenting agreement, Mr. Offutt filed a rule to show cause why Mrs. Offutt should not be held in contempt of court for violating his rights under the parenting agreement. Mrs. Offutt contends, however, that she was not properly served with the rule and hence, did not appear for the hearing.

 On March 11, 1994, in granting Mr. Offutt's petition ex parte after a hearing and awarding him temporary physical custody of Kristine, the circuit court expressly found that: (1) A rule to show cause had been previously entered against Mrs. Offutt for her failure to comply with visitation orders of the court; (2) The rule to show cause was served upon Mrs. Offutt; (3) Mrs. Offutt failed to appear in court in response to the rule; and (4) He perceived an unwillingness on the part of Mrs. Offutt to encourage a close and continuing relationship between Mr. Offutt and Kristine. The transcript of the hearing was incorporated into the court's order.

 Mrs. Offutt has asserted that she filed a timely motion in the Circuit Court to vacate the custody order. In that motion to vacate she alleged that: (1) She had not received proper notice of the rule to show cause; (2) Mr. Offutt and Mr. Berman conspired to defraud the circuit court regarding that service; and (3) Mr. Offutt had failed to inform the circuit court that he is legally blind and had been on steroids for about twenty-five years causing him extreme emotional instability Mrs. Offutt sought to vacate any and all orders awarding temporary physical custody to Mr. Offutt, vacate the supplemental judgment for dissolution of marriage entered on July 8, 1992, or alternatively to vacate any and all portions of any orders or judgments which relate to the care, custody and support of Kristine and to be accorded an opportunity to present facts bearing on the best interests of the child. Mrs. Offutt states that her motion to vacate is currently pending in the Circuit Court of Cook County.

 In July 1994, plaintiffs filed this action alleging that defendants violated plaintiffs' rights under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution, and 28 U.S.C. 1983, and invoke jurisdiction pursuant to 28 U.S.C. 1651, 28 U.S.C. 1343, 28 U.S.C. 1332, 28 U.S.C. 1331 and 42 U.S.C. 2000 et seq. of the Civil Rights Act of 1964.

 Mrs. Offutt alleges that in the latter part of the 1980's she worked as an assistant United States attorney at a time when the United States Attorney's Office prosecuted a number of matrimonial lawyers who practiced in the domestic relations division of the Circuit Court of Cook County during "Operation Greylord" (hereinafter "Greylord"). Mrs. Offutt further alleged that hostility and apprehension resulted toward her as a result of Greylord. Mrs. Offutt contended that having knowledge of the hostility and apprehension due to Greylord, Mr. Offutt filed a meritless pleading and court action with the intention of denying plaintiffs their Due Process and Equal Protection rights or with the intention of harassing plaintiffs.

 Additionally, plaintiffs assert that Judge Kaplan, whom they allege is a white male, intentionally violated plaintiffs' federal civil rights: (1) by failing to maintain impartiality and objectivity; (2) by appointing Mr. Bernstein as guardian ad litem; (3) when he failed to interview plaintiff; (4) when he failed to consider the best interest of Kristine; and (5) by appointing a guardian ad litem who is a white male for Kristine, who is a black, Episcopalian female. According to Mrs. Offutt, Mr. Bernstein and Mr. Berman, both white males, and Mr. Offutt, a black male, induced Judge Kaplan, also a white male, to discriminate against plaintiffs based on race, sex, color and religion. Plaintiffs claim irreparable harm due to defendants precluding Kristine's attendance at a prominent Episcopalian girls' school in Washington, D.C., where prominent figures such as Vice President Al Gore's daughter attends, and James Baker, former Secretary of State, educated his daughter.

 A. JUDGE KAPLAN'S MOTION TO DISMISS.

 Judge Kaplan filed a motion to dismiss plaintiffs' claim on grounds that the federal court lacks jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. He contends that the complaint is brought under 42 U.S.C. § 1983 and as requested relief, plaintiffs seek to have this court issue a writ of mandamus directing him to vacate the appointment of the guardian ad litem and stay the proceedings in Offutt v. Offutt, No. 87D20050. Judge Kaplan asserts that a federal district court has no general mandamus jurisdiction to compel action by a state court judge and no power to issue a writ of mandamus directing state court judges in the performance of their duties, citing Archer v. Superior Court of California, No. C94-20019 RMW, order at 2 (N.D.Ca. 1994) (1994 U.S. Dist. LEXIS 6651); and Jones v. Burris, 825 F. Supp. 860, 861 (N.D.Ill. 1993). He further asserts that he has recused himself from the Offutt case and since plaintiffs will not appear before him they have no standing and hence, there is no jurisdiction in this court to issue a writ of mandamus, citing Deimler v. Pease, 919 F.2d 143 (7th Cir. Ill. 1990).

 B. HOWARD BERNSTEIN'S MOTION TO DISMISS.

 Mr. Bernstein contends in his motion to dismiss based upon Fed.R.Civ.Pro. 12(b)(6), that the complaint strings together a series of broad legal conclusions and allegations of civil rights violations without alleging: (1) specific facts supporting plaintiffs' contention that Mr. Bernstein has violated federal laws; (2) what protectible interest Mr. Bernstein has allegedly violated; or (3) that Mr. Bernstein was acting under color of state law. Bernstein also claims that his status as a guardian ad litem gives him absolute immunity from suit in the performance of his guardian ad litem duties.

 C. GERALD OFFUTT AND AUTHUR H. BERMAN'S MOTION TO DISMISS.

 Mr. Offutt and Mr. Berman assert that this Court lacks subject matter jurisdiction because this action is a transparent effort to litigate issues raised in and relevant to the pending circuit custody dispute in the Circuit Court of Cook County. Mr. Offutt and Mr. Berman further assert that even if this court could exercise subject matter jurisdiction over this action, the principles of the Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), abstention doctrine compel this court to abstain from entertaining this dispute and thereby interfering with the circuit court proceedings. Finally, Mr. Offutt and Mr. Berman assert that plaintiffs have not and cannot plead facts sufficient to state a cause of action under the various federal authorities she cites in her petition.

 D. PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PROTECTIVE ORDER.

 While awaiting a ruling on defendants' motions to dismiss, plaintiffs sought in this court, through a motion for temporary restraining order and/or protective order to stay or enjoin all discovery in the pending court matter. Mrs. Offutt contended that it is impossible for her and Kristine to defend in the state court dispute and in this court without revealing information which violates § 794(a) of Title 18 of the United States Code.

 A similar motion for a protective order had been filed in the Circuit Court of Cook County and was denied. The Illinois Appellate Court denied the same motion as well as plaintiffs' request for that court to hear an Interlocutory appeal pending in that court on an expedited basis.

 Plaintiffs maintained that, pursuant to 28 U.S.C. § 1331, the federal district court has original jurisdiction over enforcement of matters involving § 794(a) of Title 18 of the United States Code, which section addresses federal treason and sedition laws. In her motion for injunctive relief or protection, she also made passing reference to Federal Rules of Civil Procedure 16(c), 26(c) and 65, 28 U.S.C. 1441(a), (b), (c) and (e), 1446, 1447, and 1448.

 Title 18 section 794(a) of the United States Code provides:

 
"Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing code book, signal book, sketch, photograph, photographic, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life."

 Section 794(a) is applicable to the act of obtaining or furnishing guarded information pertaining to the national defense of the United States government for use to the advantage of any foreign nation. Gorin v. U.S., 312 U.S. 19, 61 S. Ct. 429, 85 L. Ed. 488 (1941). In Gorin the court explained:

 Plaintiffs contend that the federal question extends to the fact that when Kristine was admitted in 1993 to a school where Vice-President Al Gore's daughter and former Secretary of State James Baker's daughter attend, Narda Offutt was appointed as fourth grade representative and the official representative for parents of the school. Mrs. Offutt asserts security questions involved in the child custody dispute. She contends that if she divulges information about her activities concerning her appointment associated with Kristine's school, it would lead to treason and sedition because one cannot provide information to agents for persons acting on behalf of foreign countries. Mrs. Offutt has not established that she has obtained or furnished guarded information that is connected to national defense of the United States of America or has communicated that information to a foreign nation or would be required to if discovery is allowed to proceed. Thus, plaintiffs have failed to demonstrate that section 794(a) is applicable to their case.

 Plaintiffs also contend that 28 U.S.C. 1441 (a), (b), (c), and (e), and 1446, 1447, and 1448 are applicable. Section 28 U.S.C. 1441 provides:

 
(a) "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."
 
(b)"Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly ...

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