Chicago federal appeals panel, in a partial 2-1 decision, cited tort immunity
in upholding the dismissal of a Michigan lawyer’s suit against county and state
officials in Indiana, for an allegedly malicious prosecution of her in an
Dec. 8 decision was penned by Circuit Judge Diane Sykes in the U.S. Seventh
Circuit Court of Appeals, with concurrence from Senior Circuit Judge Kenneth
Ripple. Circuit Judge Richard Posner partly dissented. The Chicago-based
Seventh Circuit takes in Illinois, Indiana and Wisconsin.
Katz-Crank is a lawyer with expertise in cemetery management. Katz-Crank had a
client, Robert Nelms, who was charged with stealing $22 million from cemetery
trust funds in Marion County, Ind., while Katz-Crank was representing him.
Nelms was charged with embezzling, and Katz-Crank, with aiding and abetting the
embezzlement. The case was investigated by the Indiana Secretary of State’s
Office, with charges instituted by the Marion County Prosecutor’s Office.
Indianapolis is the Marion County seat.
ended up pleading guilty and agreeing to testify against Katz-Crank. After a
jury trial in late 2010, Katz-Crank was acquitted. In 2012, Katz-Crank sued
Marion County, as well as state and county prosecutors and investigators, in
U.S. District Court for Southern Indiana, alleging they conspired to
maliciously prosecute her, abused court process and violated her constitutional
also leveled the claim state and county officials made "false and
inflammatory" public statements about her. These statements were allegedly
uttered by a state investigator – before Katz-Crank was charged – who told some
of her clients of the investigation and recommended they not do business with
her. Other statements were through press releases disseminated by the prosecutor and secretary of
charges were filed.
contended the officials ruined her professionally, leaving her impoverished. At
one point in the case, she asked, and was permitted to proceed as a pauper.
suit was dismissed on grounds Katz-Crank failed to show how her allegations
squared with constitutional doctrines, and because she did not overcome the
wall of tort immunity that protected prosecutors. Katz-Crank then appealed.
Seventh Circuit backed up the lower court's conclusions, saying Katz-Crank
didn't specify how she was singled out for unwarranted prosecution. As an
example, Circuit Judge Sykes said Katz-Crank made no effort to show how the
Indiana Secretary of State or his investigators caused the allegedly
underhanded prosecution to be instituted.
hasn’t bothered to identify the basis of her federal claims other than pointing
very generally to the Fourth and Fourteenth Amendments,” Sykes observed.
Sykes’ view, the only “close call” when it came to possibly upsetting the lower
court’s ruling, was Katz-Crank’s allegations she was defamed. Sykes noted such
claims, if true, are not blocked by immunity. However, Sykes decided the claims
still failed, because Katz-Crank did not point to any specific false
statements. Rather, Katz-Crank tied the statements to the alleged conspiracy to
violate her rights, but the conspiracy allegation sank for lack of a stated
claim, taking the defamation allegations with it.
went on to say the alleged harm to Katz-Crank’s reputation is not enough for
Katz-Crank to argue her right to due process was breached.
Circuit Judge Posner, the defamation question was more than a close call; it
was reason to overturn the dismissal and reinstate the lawsuit.
explained that Sykes looked at defamation from the vantage of its possible
impact on due process and Katz-Crank's trial, which is moot in that Katz-Crank
was found not guilty. Instead, Posner said the issue should revolve around
possible injury to her professional reputation. Posner noted prosecutors may
enjoy immunity, but investigators – such as the one who allegedly tarnished
Katz-Crank – do not.
said the suit should go ahead on the sole allegation the investigator damaged
has been represented by the firm of Blanco Wilczynski PLLC, of Troy,