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SCHMUDE v. SHEAHAN

March 29, 2004.

JOAN SCHMUDE, Administrator of the Estate of Louis Schmude Plaintiff,
v.
MICHAEL SHEAHAN, in his official capacity as Cook County Sheriff, WILLIAM SPATZ, PATRICIA PULTZ, and LAWRENCE KOSCIANSKI Defendants



The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

I. INTRODUCTION

In an order dated October 2, 2003, the court advised and gave notice to attorneys Edward R Theobald, Alan R. Brunell, and Anthony Pinelli (collectively "counsel") that the court intended to proceed on a Rule to Show Cause as to why sanctions should not issue, under Federal Rule of Civil Procedure 11 and the court's inherent powers. In that order the court stated that a Rule to Show Cause would be issued expeditiously. On October 8, 2003, the court issued the Rule to Show Cause ("Rule"), and allowed counsel 45 days to respond in writing. The matter is now folly briefed and before the court.

  In summary, at issue are the pleadings filed and actions taken by private individual defense attorneys. Following the removal of the action from state court and subsequent denial of remand, the private individual defense attorneys procured the entry of an order in the state court declaring them Special State's Attorneys to represent defendants in a matter pending in the federal court. Thereafter, counsel Page 2 repeatedly obtained orders in the state court for fees in excess of one-quarter of a million dollars, relating to the substantive matters before the federal court.

  II. BACKGROUND

  This case arises out of the death of Louis Schmude. Schmude died on May 7, 2000, while in the custody of the Cook County Sheriffs Department. In the resultant lawsuit, Plaintiff (hereinafter "the Estate") claimed that Defendants*fn1 were liable under 42 U.S.C. § 1983 and various state law theories for damages arising out of Schmude's death. A detailed background concerning the procedural history of this case is necessary to place the Rule to Show Cause and the instant opinion in context.

  A. The State Court Civil Action and Subsequent Removal to Federal Court

  On June 20, 2000, the Estate filed its original complaint in the Circuit Court of Cook County, naming only one Defendant, Cook County Sheriff Michael Sheahan (hereinafter "the Sheriff'). On June 27, 2000, the Sheriff was served with process. The Cook County State's Attorneys Office determined that a conflict of interest would exist if it represented the Sheriff, and so on July 6, 2000, Tyrone C. Farmer, Brian F. Hynes and Michael K. Forde of the law firm of Mayer, Brown & Platt were appointed to represent the Sheriff as Special State's Attorneys in the Circuit Court of Cook County by the Honorable David R. Donnersberger, the judge before whom the case was pending. On July 26, 2000, a Cook County Circuit Court judge granted the Estate leave to file an amended complaint, naming three individual Sheriffs Deputies, William Spatz, Patricia Pultz and LarryKoscianski, as additional Defendants. On that same day, the Estate had summonses issued for all three additional Defendants. Page 3

  On July 27, 2000, one day after the Estate filed its amended complaint, the Sheriff filed a Notice of Removal in the United States District Court for the Northern District of Illinois. Attached to the Sheriffs Notice of Removal was a copy of the original complaint, which named only the Sheriff as Defendant. At the time of removal, the Sheriff was the only Defendant served with process. Several weeks after the removal, the Cook County Sheriffs Department served Koscianski and Pultz withnotice of the state court proceeding and a copy of the amended complaint. Spatz was never formally served with process in this case (more about this later).

  After removal, on December 22, 2000, attorneys Theobald and Brunell filed their personal appearances in the federal court, along with motions to be appointed as Special State's Attorneys to represent Spatz and Koscianski. One week later, on December 27, 2000, attorney Michael Ficaro filed his personal appearance in the federal court, along with a motion to be appointed as a Special State's Attorney to represent Pultz. In these motions, counsel indicated that the individual Defendants would ordinarily have been represented by the Cook County State's Attorneys Office; however, due to a conflict of interest, the Cook County State's Attorneys Office could not represent them. Counsel further indicated that an Illinois statute provided that the court in which a case is pending may appoint an attorney as a Special State's Attorney for the limited purpose of representing a party in that case. See 55 Ill. Comp. Page 4 Stat. § 5/3-9008 (2003).*fn2 On December 27, 2000, the court took these motions under advisement. The Rule to Show Cause had its roots in these motions.

  B. The State Court Criminal Action and Resultant Stay of Proceedings in Federal Court

  One month before removal, on June 22, 2000, Spatz, Pultz and Koscianski were indicted and charged with first-degree murder in connection with the death of Louis Schmude. Thus, in addition to defending themselves against civil claims in the federal court, all three individual Defendants were defending themselves against criminal charges brought by the Cook County State's Attorneys Office in the Circuit Court of Cook County. On December 29, 2000, the federal court stayed all proceedings in the civil case pending the outcome of the criminal prosecution.

  On January 22, 2002, the criminal trial began. On March 12, 2002, in a bench trial before the Honorable Ronald A. Himel, all three Sheriffs Deputies were acquitted of the charges against them.

  C. The Stay of Proceedings in Federal Court Lifted

  With the criminal trial concluded, the court returned to the civilmatter. On March 18, 2002, after the conclusion of the criminal prosecution, attorney Theobald, on behalf of Spatz, filed a Renewed Motion to Remand to the Circuit Court of Cook County. At the March 22, 2002 hearing on the matter, the following exchange took place: Page 5

 
COURT: One of the issues the Court must deal with before deciding to lift the stay is who it is who will represent the defendants in this case, the individual defendants Spatz, Pultz and Koscianski. Three attorneys have asked this Court to appoint them Special Assistant State's Attorneys pursuant to some Illinois statute. And I have some doubts about the applicability of that statute to this situation. . . .
But I am going to ask that the plaintiffs and all counsel brief this issue of the applicability of the Illinois statute, which counsel suggests applies here.
But beyond that, if the Court does have the obligation or the discretion to appoint counsel as Special Assistant State's Attorneys, I will be candid with you and tell you that it is not likely that the Court would appoint any attorney who has previous experience with the State's Attorneys office. And each of the movants here who are asking to be appointed attorneys, Special Assistant State's Attorneys, in their curricula vita or resume make a point of saying that they were in that office at some point in time or for some extended period of time.
And I will take this position initially, without ruling on it today, that it would be better to start, if at all, with attorneys who have not had experience in that office because of the particular relationship between the Sheriff and the State's Attorney's Office, given the background in this case, which involves the recent criminal prosecution.
So the first issue is whether that Illinois statute pertains.
There is no Sixth Amendment right to counsel in a civil matter. Each one of the defendants here has the right to employ his or her own attorney, if he or she chooses to do so. But the motions are brought by individual attorneys who are asking to be appointed Special Assistant State's Attorneys. And so that's the issue to brief.
The plaintiff certainly should be heard on this, the Sheriff should be heard, and each individual movant also should be heard.
And so you can submit simultaneous briefs on this issue within 21 days.
MR. THEOBALD:
Judge, I'd like to point out that that is not before the Court right now. The motion that I filed on behalf of William Spatz is to remand this case back to state court because —
COURT:
Well, you're not in the case. You have filed an appearance, but along with that appearance you have filed a motion to be appointed a Special Assistant State's Attorney to represent Spatz. And what I'm saying is that motion may not be granted. . . .
  MR. THEOBALD: Page 6
 
. . . But notwithstanding any ruling, my client wants me as his attorney, regardless of any appointment by the State's Attorney's Office or not. And I'm asking under the law that the case go back to state court, because it was clearly improperly removed.
COURT:
Well, if you are withdrawing — are you withdrawing your motion to be a Special Assistant State's Attorney in this case? . . .
MR. THEOBALD:
At this particular time, sure.
The motion I presented today was to remand back to state court. Not to be appointed anything.
COURT:
Are you making a motion to withdraw your motion to be appointed as Special Assistant State's Attorney?
MR. THEOBALD:
Well, the motion I filed today, Judge, is to remand it. So that's — 1 don't know how to respond to that.
COURT:
Well, I construe your answer is that you are not making a motion the [sic.] withdraw the motion.
MR. THEOBALD:
Well, I —
COURT:
So to deal with this, you have 21 days to submit simultaneous briefings on the issue that I have discussed. And we will take it one step at a time. And so —
MR. FIGARO:
Judge, if I may speak on behalf of Miss Pultz. My name is Michael Ficaro. Before the Court was my petition. I would withdraw my petition to be appointed Special Assistant State's Attorney by this Court and join in the motion for remand to state court. . . .
COURT:
We will get to that in due course. But if you are making a motion to withdraw your motion to be appointed a Special Assistant State's Attorney, your motion is granted. And if you want your appearance to be as private counsel — for Pultz is it?
MR. FICARO:
Yes, your Honor.
COURT:
— certainly your appearance would be received.
So are you filing an appearance as her private attorney in this matter?
  MR. FICARO: Page 7
 
I have not yet filed an appearance in the court. I'm here on the remand, your Honor. And most respectfully, I don't know if the Court has had the opportunity to review Mr. Theobald's remand motion. It appears — COURT: So are you making a motion to withdraw your motion to be appointed a Special Assistant State's Attorney?
MR. FICARO:
Yes.
MR. THEOBALD:
And on behalf of Mr. Spatz I will withdraw the motion — the petition that I filed, and in Mr. Brunell's stead we will withdraw on Mr. Koscianski's behalf. So that issue is no longer before the Court. . . .
COURT:
All right. So very well.
Then there no longer is the issue of the appointment of Special Assistant State's Attorneys. Then what is before the Court is a motion to vacate the stay. That motion is granted and we will brief the issue of remand. . . .
So the stay is granted only to the extent now to deal with the issue of remand.
Trans. of March 22. 2002 Hearing, pg. 3 — 10.

  At this hearing, counsel for the individual Defendants withdrew their motions to be appointed as Special State's Attorneys. Attorney Brunell was not personally present, but attorney Theobald represented that he had the authority to appear in attorney Brunell's stead and to withdraw the motion. Thus, attorneys Theobald, Ficaro and Brunell appeared in this matter solely as private attorneys representing Spatz, Pultz and Koscianski, respectively.

  D. Proceedings in Federal Court Subsequent to the Stay Being Lifted

  With the matter of representations seemingly settled, the court and the parties then proceeded with Spatz's March 18, 2002 Motion to Remand to the Circuit Court of Cook County. On April 22, 2002, the court issued an eight-page opinion denying Spatz's Motion to Remand to the Circuit Court of Cook County. See Schmude v. Sheahaa 198 F. Supp.2d 964,968 (N.D. Dl. 2002). On April 24, 2002, Spatz Page 8 filed a Motion to Reconsider the Court's April 22, 2002 Ruling, which the court subsequently denied. Thereafter, on May 17, 2002, Spate filed a Motion to Certify the Court's April 22, 2002 Ruling Pursuant to 28 U.S.C. § 1292(b), which the court granted. On June 14, 2002, the Seventh Circuit denied Spate's Petition for Leave to Appeal. Thus, these rulings conclusively stated that the court had jurisdiction over the entire matter.

  On May 8, 2002, the court completely lifted the stay of proceedings in this matter. On that same day, Pulte filed a motion for leave to file the personal appearance of Anthony Pinelli as additional counsel, which the court routinely granted. Pulte had two private attorneys.

  Again, at this time, the individual Defendants were represented by private counsel, as the motions to be appointed as Special State's Attorneys had been withdrawn. On July 15, 2002, Defendants Spate, Koscianski and Pulte filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 4(m), 12(b)(4), 12(b)(5) and 12(b)(6). On December 6, 2002, the court denied the Motion to Dismiss for failure to state a claim under Rule 12(b)(6). On April 23, 2003, the court denied the remaining grounds raised in the Motion to Dismiss. See Schmude v. Sheahan, 214 F.R.D. 487 (N.D. Ill. 2003).

  E. The Issue of Being Appointed as Special State's Attorneys Arises Again

  On May 20, 2003, attorney Ficaro filed a motion to withdraw as counsel for Pulte. On May 23, 2003, a hearing on the matter was held. At that time, the following exchange took place:

  COURT: . . . Now who is moving to withdraw? MR. THEOBALD: Mr. Ficaro is moving to withdraw for Patricia Pulte. . . . COURT: Page 9

  Where is Mr. Ficaro? MR. THEOBALD: He has a hearing in the Daley Center, Judge. COURT: Mr. Ficaro is not here. MR. THEOBALD: I'm standing in in his stead. He has got two hearings over there. COURT: If he withdraws, who is coming in? MR. PINELLI: Judge, I already have an appearance on file as co-counsel for Miss Pultz, and I will remain. COURT: You are her private attorney? MR. PINELLI: Yes. No. Judge, I am appointed by the Circuit Court of Cook County. COURT: What makes you think so? MR. PINELLI: I'm sorry? COURT: What makes you think so? MR. PINELLI: I have an order from Judge Lott in Chancery Court appointing me. COURT: When did that occur? MR. PINELLI: Last May, Judge. COURT: In this case? MR. PINELLI: Yes. No, not in this case. We filed a petition with the agreement of the Cook County State's Attorney seeking to be appointed and seeking to represent Miss Pultz, and they agreed to that order. COURT: The order was entered on July 6, 2000, with respect to Special State's Attorneys by Judge Donnersberger, or someone with that name. MR. PINELLI: With respect to the Sheriff, yes, your Honor not the individual defendants. COURT: Okay. But you are not appointed counsel in this case. Page 10

  MR. THEOBALD: Yes. MR. PINELLI: Yes, I am. Yes, Judge. COURT: Let me see a copy of the order. MR. PINELLI: Judge, I didn't bring it with me today. I will have it here in half an hour. COURT: Once this case was removed, then no Judge in the state court could issue any orders in this case. MR. PINELLI: Judge, we didn't file this case or indicate that we were seeking any order with respect to any matter before your Honor. We filed the petition in the Circuit Court of Cook County seeking to have counsel appointed. COURT: Not in this case. MR. THEOBALD: Yes. MR. PINELLI: On behalf of the defendants. COURT: After it was here? After it was here? MR. THEOBALD: Yes. MR. PINELLI: After this case was removed, yes, sir. COURT: Then you cannot do that. MR. THEOBALD: Judge — COURT: I'm talking to one attorney at a time. MR. THEOBALD: Well, I'm the same thing. COURT: Well, no you are not. You are not special attorneys appointed to this case. Once this case was removed, it was removed, and no attorney, once removed, could go before any state judge and file a motion. And any order that would be entered under those circumstances would be an improper order and unenforceable. Once the case is removed, just this Court makes such decisions. Page 11

  You are not an appointed attorney in this case, nor is Mr. Theobald. If you are here, it is because you are employed by individuals. MR. PINELLI: Judge, I have my appearance on file on behalf of Miss Pultz, and I intend to litigate this matter and I will consider what you have said. COURT: Are you telling me that once this case was removed to the federal court, notwithstanding removal that you went before a state judge and filed a motion? MR. PINELLI: Not a motion, a petition. COURT: A petition. A pleading. MR. PINELLI: A separate lawsuit by Miss Pultz seeking to have counsel appointed on her behalf. MR. THEOBALD: Could I explain, Judge? COURT: Not you. MR. THEOBALD: I am involved in this too. COURT: We will get to you, Mr. Theobald. MR. THEOBALD: All right. COURT: Any order that was entered by any state judge appointing an attorney to represent a party in this case, once this case was removed to the federal court, is void. That applies — if that is what you did, if you, knowing of the removal, filed a petition or a motion before a state judge, that was improper conduct. And any order that a judge entered, once this case was removed to the federal court, was an improper order. He or she acted without jurisdiction. You did the same, Mr. Theobald? MR. THEOBALD: Yes, Judge. . . . A new independent action was filed, with the agreement of the Circuit Court, with the agreement of the State's Attorney of Cook County. I, Mr. Pinelli, Mr. Brunei! and Mr. Ficaro were appointed as Special State's Attorneys under a State Statute to represent them here. And this has been going on for probably — well, I have been practicing for 29 years, and that's been the procedure, to go before a state court judge. Page 12

  The only time that a federal court judge appointed a Special State's Attorney that I know of is when Judge Bua appointed me to represent the Sheriff 15 years ago. COURT: Once the case is remanded [sic.] to the federal court, the state court loses jurisdiction and cannot act with respect to that case any longer. If you want to be here in this case, it is only as private counsel. As a matter of fact, several hearings back, when you filed a motion here with respect to being appointed a Special State's Attorney, the Court made some comments, and you then withdrew the motion. I don't know if you then went to the state court. I don't know if you did that. But once the case is in the federal court, no state judge can enter any order in that case. The state court has lost its jurisdiction. And so if you are — if you think that you are Special State's Attorneys in this case, that is not the case. MR. THEOBALD: . . . But we — 1 would disagree — we have been appointed, we are here as private counsel, whatever, and we are — we are here. COURT: Well, you are here only if you choose to act as private attorneys. And if that's what you want to do in this Court, you can be here as private attorneys. But you are not special attorneys as far as this Court is concerned. MR. THEOBALD: We are just asking that Mr. Ficaro's appearance be withdrawn and — MR. PINELLI: My appearance has been on file. You gave me leave to appear as Anthony Pinelli, Attorney at Law, sometime ago. COURT: You want to appear as a private attorney? MR. PINELLI: I want to continue in this matter. I will consider what your Honor has said today. COURT: It's not consideration, it's an order. MR. PINELLI: I understand it's an order. COURT: Who is going to pay your bill? MR. PINELLI: Page 13

 
I don't know the answer to that as I stand here.*fn3 COURT: But it will not be Cook County and it will not be the State's Attorney. Do you want to — MR. PINELLI: Judge, I understand your order. And with all due respect, I understand your order. And now I have to decide what to do about it. COURT: Do you want to decide now? MR. PINELLI: I don't want to withdraw. I want to remain in the case. COURT: Well, you are here only as private counsel. MR. PINELLI: Your Honor, irrespective of my status, I filed an appearance and I would like to continue representing Miss Pultz. If what you are saying — your order is your order, and now I have to consider whether I need to have some sort of an appeal, whether I need to just remain in the case. I have no intention of withdrawing at this point or asking to withdraw here. . . . COURT: And if you are here, you are here as a private attorney. That's this Court's position. And to reemphasize this for the record, once the case was brought here, having been removed from the state court to the federal court, no state judge could enter an order regarding this case. That's this Court's position. MR. PINELLI: Yes, sir.
Trans. of May 23.2003 Hearing, pg. 5-13.

  Thus, at this hearing, all counsel were reminded that any post-removal motions must be made in the federal court. As indicated by the court, any petition or motion to be appointed as Special State's Attorney, made pursuant to 55 Ill. Comp. Stat. § 5/3-9008 or any other applicable law or rule of civil Page 14 procedure, had to be brought in the federal court. In fact, after the above-excerpted discussion, the court proceeded to address the Sheriffs motion to amend the appointment ofa Special State's Attorney, brought pursuant to 55 Ill. Comp. Stat. § 5/3-9008. The court reiterated that litigating issues concerning the removed case in the state court would be "improper conduct." As Pinelli indicated, the court's ruling on the issue of appointing a Special State's Attorney was clear and counsel could have sought review by filing the proper pleading in the Seventh Circuit Court of Appeals. However, Pinelli did not file an appeal, nor did any other attorney. Rather, as discussed infra, counsel filed their petition to be appointed as Special State's Attorneys in the state court, a procedure that was in direct contradiction to this court's ruling on the issue.

  F. Other Attorneys Followed Proper Procedure to be Appointed as Special State's Attorneys

  The attorneys for the Sheriffunderstood this admonition and order. A recitation of the steps that they took in order to be appointed as Special State's Attorneys, and obtain awards of attorney fees, will illustrate this point.

  Prior to removal, on July 6, 2000, Tyrone C. Farmer, Brian F. Hynes and Michael K. Forde of the law firm of Mayer, Brown & Platt were appointed to represent the Sheriff as Special State's Attorneys in the Circuit Court of Cook County by the Honorable David R. Donnersberger, the judge before whom the case was pending. In accordance with 28 U.S.C. § 1450, those appointments remained in effect when the case was removed to federal court.

  After removal, on December 28, 2000, the Sheriff filed a motion in the federal court to amend the appointment to allow Tyrone C. Farmer, Brian F. Hynes, Robert H. King, Jr. and Michael D. Smith of the Page 15 law firm of Greenberg Traurig, P.C. to represent the Sheriff as Special State's Attorneys. This motion to amend the appointment was made as a result of one of the Sheriffs attorneys having changed law firms. The court granted that motion, and instructed the Sheriffs attorneys on how to seek attorney fee awards. On April 4, 2001, the Mayer, Brown & Platt attorneys filed a petition for attorney fees for work performed prior to removal, which the court granted. On November 12, 2002, the Greenberg Traurig attorneys also filed a petition for attorney fees, which the court granted. On May 19, 2003, due to another one of the Sheriffs attorneys having changed law firms, the Sheriff filed another motion to amend the appointment to allow Brian F. Hynes, John F. Kennedy and Steven J. Thompson of the law firm of Shefsky & Froelich Ltd. to represent the Sheriff as Special State's Attorneys. The court granted that motion and again instructed the Sheriffs attorneys on how to seek attorney fee awards.

  In their responses to the Rule to Show Cause, counsel indicate that another attorney for the Sheriff attempted to litigate the issue of appointments in the state court after removal. On November 3, 2000, attorney Hynes filed a motion in the Circuit Court of Cook County before the Honorable David R. Donnersberger seeking to amend his appointment as a Special State's Attorney. See Schedule of Exhibits, Ex. 6. That motion stated that it was seeking to amend the appointment as a result of attorney Hynes having changed law firms. See id., Ex. 6 ¶ 8. By order dated November 6, 2000, the Honorable David R Donnersberger denied that motion, recognizing the fact that jurisdiction in the state court had ceased upon removal to the federal court. See id., Ex. 7. Thereafter, onDecember 28, 2000, attorney Hynes, and other attorneys from the law firm to which he had moved, properly filed that motion in federal court. Counsel were given notice of that motion, and thereby given notice of the proper procedure to be appointed as Special State's Attorneys. Page 16

  Throughout this matter, the court reiterated that it had jurisdiction over all matters, including issues concerning representation and awards of attorney fees. On May 27, 2003, the court entered a Case Management order to that effect, instructing all attorneys appointed as Special State's Attorneys by this court to submit periodic fee petitions at 28 day intervals. The attorneys appointed as Special State's Attorneys have complied with that order, and the court has subsequently awarded additional attorney fee awards.

  In contrast to the proper litigation conduct shown by the attorneys representing the Sheriff as Special State's Attorneys, attorneys Theobald, Brunell and Pinelli chose another form of conduct. Following removal, the court's denial of remand, an appeal of the denial of remand to the Seventh Circuit and repeated admonitions that further proceedings regarding this case in the state court would be improper, these attorneys repeatedly circumvented the federal court's authority and jurisdiction by obtaining fees and expenses in excess of $250,000 in the state court.

  G. Counsel Circumvented the Federal Court's Authority and Jurisdiction by Initiating a State Court Proceeding to be Appointed as Special State's Attorneys

  Approximately one month after the March 22 hearing, and one week after the April 22 order denying the motion to remand, on April 29, 2002, attorney Theobald initiated a cause of action in the Circuit Court of Cook County, Chancery Division captioned In re Special State's Attorneys, case number 02 CH 08323. On April 30, 2002, a motion styled "Petitioner's Motion for Appointment of Special State's Attorney" was filed in the Circuit Court of Cook County, Chancery Division. That motion sought to have attorneys Theobald, Brunell, Ficaro and Pinelli appointed to represent Spatz, Koscianski and Pultz Page 17 in the matter pending in the federal court. On the face of that motion, two attorneys, Ficaro and Pinelli, sought to represent Pultz. That motion stated:
Petitioners are defendants in the case of ESTATE OF LOUIS SCHMUDE, et al, plaintiffs v. MICHAEL SHEAHAN, Cook County Sheriff, WILLIAM SPATZ, Cook County Deputy Sheriff, PATRICIA PULTZ, Cook County Deputy Sheriff, and LARRY KOSCIANSKI, Cook County Deputy Sheriff, defendants, 00 L 6557 later removed to federal court and renumbered as 00 C 4580.
The prayer for relief in that motion stated:
Petitioners pray this Honorable Court to enter an order appointing Edward R. Theobald as a Special State's Attorney to represent WILLIAM SPATZ, Alan R Brunell as a Special State's Attorney to represent LARRY KOSCIANSKI, and Michael A. Ficaro and Anthony Pinelli as Special State's Attorneys to represent PATRICIA PULTZ and to retain jurisdiction over the appointments for the purpose of awarding counsel attorney's fees and expenses.
  From that motion, it appears that notice was given to Patrick T. Driscoll, Jr. and Thomas M. Burnham of the Cook County State's Attorneys Office. That motion was ultimately granted by the Honorable Gay-Lloyd Lott, apparently presiding in the Chancery Court, on May 3, 2002.

  After having been ostensibly appointed as Special State's Attorneys in the Circuit Court of Cook County, Chancery Division, counsel also filed numerous motions for awards of attorney fees in that court.*fn4 Theobald filed motions for attorney fees, which were granted by that court on the following dates: July 12, 2002; October 10, 2002; January 2, 2003; March 18, 2003; May 27, 2003; June 30, 2003; and September 25, 2003. Brunell filed motions for attorney fees, which were granted by that court on the following dates: July 12, 2002; March 18, 2003; and July 29, 2003. Likewise, Pinelli filed a motion for Page 18 attorney fees, which was granted by that court on August 19, 2003. These fee motions were filed after the June 14, 2002 order of the Seventh Circuit denying Spate's Petition for Leave to Appeal. The orders granting counsels' motions were entered predominantly by the Honorable Gay-Lloyd Lott, but some orders were also entered by the Honorable WilliamMaki. On the face of the record, the total amount of attorney fees awarded by those orders was in excess of one-quarter of a million dollars.*fn5

  In short, counsel repeatedly proceeded to litigate issues regarding this case in the state court following removal, the court's denial of remand, an appeal of the denial of remand to the Seventh Circuit and repeated admonitions that further proceedings regarding this case in the state court would be improper. Counsel used the other side of our federalism structure to litigate issues that should have been addressed inthis court, with the federal court having jurisdiction over the entire matter.

  H. Rule to Show Cause

  In light of these events, the court issued a Rule to Show Cause alleging that counsel had disobeyed the court's orders and acted improperly by seeking to become court-appointed counsel and obtaining numerous awards of attorney fees in the state court after the case had been removed to federal court. Further, the Rule to Show Cause alleged that counsels' conduct exhibited a lack of candor toward the court. The court then issued the Rule, giving counsel 45 days to respond in writing.

  Approximately two weeks after the court issued the Rule to Show Cause, the parties pursuant to settlement, executed a Stipulationto Dismiss the underlying action, which the court entered. On November 24, 2003, counsel filed their answers to the Rule to Show Cause, as well as numerous motions to dismiss Page 19 the Rule and a Motion for Recusal. During the December 5, 2003 status hearing, counsel sought an expedited ruling on the Motion for Recusal, which the court took under advisement. On February 3, 2004, attorney Theobald filed a motion to stay all other matters until the Motion for Recusal had been decided. On February 6, 2004, the court also took that motion under advisement.

  Upon review of counsels' filings in response to the Rule to Show Cause, the court finds that the matters raised in counsels' answers to the Rule, the numerous motions to dismiss the Rule, and the Motion for Recusal are all inextricably intertwined. However, each motion will be decided separately, in turn, in the instant opinion. Since the decision as to the Motion for Recusal is dispositive of whether the court should proceed to address the other matters, the court will address that issue first.

  III. MOTION FOR RECUSAL*fn6

  Counsel argue that recusal is required pursuant to 28 U.S.C. § 144, 455(a) and (b)(1). As a preliminary matter, the motion for recusal brought pursuant to § 144 is improper since no party's affidavit is included. See United States v. Barnes, 909 F.2d 1059, 1072 (7th Cir. 1990) (indicating that § 144 requires both an affidavit of a party and a certificate of counsel stating that the affidavit is made in good faith). Furthermore, the arguments which counsel advance in support of recusal pursuant to § 144 mirror Page 20 the arguments raised pursuant to § 455(b)(1), and thus are subsumed in the analysis of whether recusal is warranted pursuant to § 455(b)(1), which is discussed infra. See Brokaw v. Mercer County, 235 F.3d 1000,1025 (7th Cir. 2000) (stating that "[b]ecause the phrase `personal bias or prejudice' found in section 144 mirrors the language of section 455(b), [an] analysis under section 144 is identical").

  As to the arguments under 28 U.S.C. § 455, counsel argue that recusal is appropriate under 28 U.S.C. § 45 5(a) because there would exist an appearance of impartiality if the court proceeded on the Rule to Show Cause. Additionally, counsel argue that recusal is appropriate under 28 U.S.C. § 455(b)(1) because the court has personal knowledge of disputed evidentiary facts, as well as a personal bias against counsel. The court will address each of these arguments in turn.

  A. 28 U.S.C. § 455

  Section 455 of Title 28 of the United States Code is a collection of various grounds for recusal. Grounds for recusal under § 455 are divided into two sections. See Microsoft Corp. v. United States, 530 U.S. 1301 (2000). Section 455(b) enumerates certain instances where recusal is required; subsection (1) covers bias and prejudice grounds and subsections (2-5) cover interest and relationship grounds. See 28 U.S.C. § 455(b)(l-5); see also Litekvv. United States. 510 U.S. 540,547-48 (1994). The other section, § 455(a), has been termed the "`catchall' recusal provision, covering both `interest and relationship' and `bias and prejudice' grounds." Liteky, 510 U.S. at 548. While § 455(b) is concerned with the reality of bias, prejudice, interest or relationship; in contrast, § 45 5(a) is concerned only with the appearance of impartiality. See id.

  1. 28 U.S.C. § 455(a) Page 21

  Section 455(a) is concerned with whether there would be an appearance of impartiality if a given judge presided over a case. See id. Section 455(a) provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The inquiry under § 455(a) is based on an objective standard. See Liteky, 510 U.S. at 548. Thus, the inquiry to be made is whether a reasonable observer, informed of all the surrounding facts and circumstances, would perceive a significant risk that the judge will resolve the case on a basis other than the merits. See Microsoft, 530 U.S. at 1301: Hook v. McDade. 89 F.3d 350, 354 (7th Cir. 1996) (citation omitted); Union Carbide Corp. v. U.S. Cutting Service. Inc., 782 F.2d 710, 715 (7th Cir. 1986). "The decision whether a judge's impartiality can'reasonably be questioned' is to be made in light of the facts as they existed, and not as they were surmised or reported." Cheney v. United States District Court for the District of Columbia. — U.S. —, 2004 WL 524885, at * 1 (March 18, 2004) ...


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