Young, Berry move to dismiss suit over Venezia wrongful death fee

Amelia Flood Nov. 11, 2010, 4:00am



ST. LOUIS - St. Clair County Circuit Judge Patrick Young is moving to throw out a lawsuit filed against him in federal court over a retainer fee he forced St. Louis attorney James Schottel Jr. to return to clients.

Schottel sued Young and Belleville attorney William Berry in September over the botched wrongful death suit involving the estate of convicted racketeer Thomas Venezia. The case was dismissed in 2009, two years after it was filed, for lack of prosecution. Defendants in the case were never served.

Schottel claims that Young violated his civil rights and conspired against him with Berry, who had been his co-counsel in the wrongful death suit, when Young forced him to return $1,600 to former clients Michael and Cynthia Anderson in July.

Schottel had represented the Andersons in the suit filed on behalf of their 21 year-old daughter, Jennifer Anderson, who was killed by a gunshot wound to the back of her head in the Belleville home she shared with Venezia, 64, in 2005.

Venezia was also found dead at the scene.

Young filed a motion to dismiss the federal suit against him on Nov. 4, citing judicial immunity.

He argues that all of his actions were undertaken in his role as a St. Clair County judge and as such are subject to that immunity.
The motion goes on to argue that the St. Louis federal court is an improper venue for Schottel to pursue a claim.

Young's memorandum in support of the motion to dismiss argues that the federal court is barred from reviewing a state court's decisions and that Schottel should have taken his claims up through the Illinois state appeals and Supreme Court instead.

Or, if the case can go through the federal system, the case should go through the U.S. District Court for the District of Southern Illinois instead.

Berry also filed a motion to dismiss the case on Nov. 10.

His motion supports many of Young's arguments.

The motion also addresses specific counts against Berry including a defamation count Schottel filed against him individually over statements Berry allegedly made smearing Schottel character in court and case proceedings.

Berry asserts that his statements, as they were made to a co-counsel in the Anderson case, are privileged.

In his memorandum supporting his dismissal move, Berry argues that he did not publish a statement or make statements that meet Missouri law's defamation requirements.

Berry also takes aim at Schottel's conspiracy claims, arguing that the required "meeting of the minds," never took place between himself and Young.

"At most, Plaintiff has pled that Berry and Young engaged in routine discussions – all in open court and all transcribed by a court reporter – about the Anderson Case," the memorandum reads.


The Belleville Police Department ruled in July 2005 that the Venezia and Anderson deaths were murder-suicide.

The Andersons sued the estate of Thomas Venezia and Robert Staack in 2007 in St. Clair County, claiming that Staack negligently gave Venezia the gun used to kill their daughter in spite of knowing Venezia was ill and suffering from emotional problems.

Neither defendant was ever served in the case.

The Andersons' suit dragged on for much of last year as Schottel and Berry traded allegations over who had botched service in the case and after wrangling began over the Andersons' $1,600 retainer fee.

Berry served as local counsel while Schottel, after some mishaps, was granted pro hac vice standing in the case in 2008.

Schottel filed to withdraw as the Andersons' attorney Sept. 15, 2009.

In his motion, he claimed he had lost office staff and cited his wheel chair-bound status.

Schottel then missed several hearings in the case.

In December 2009, Young issued an order allowing Schottel to bow out if he returned the retainer fee.

Schottel filed a motion asking Young to reconsider letting him keep the money.

Young denied that motion in January.

The next month, Schottel filed for a writ of mandamus from the Illinois State Supreme Court.

If granted, the writ would have forced Young to overturn his order mandating the refund.

The Supreme Court denied that motion in March.

The issue of the retainer fee dragged on through the summer until Young entered another order demanding Schottel return the money by July 1 or face a body attachment sent from Belleville to bring him to Young's courtroom.

Schottel had missed more hearings in the case up to that point.

The Andersons eventually received the money.

They were unable to find a new attorney to represent them.

Young dismissed their wrongful death case in August with prejudice for lack of service and prosecution.

The Anderson suit drew in at least two attorney spectators as it ran its course.

Edwardsville attorney Thomas Maag observed proceedings during one hearing but only from the gallery.

Later, Belleville attorney Timothy Wiltsie chided Berry from the gallery, demanding he admit to representing the Andersons.

Wiltsie then went on to request that Young dismiss the case on behalf of a party he would not name, even when questioned by Young from the bench.

Wiltsie never entered an appearance in the case.

Neither did Maag.

Belleville attorney Stephen McGlynn filed Young's response to the writ of mandamus but did not represent any party in the case.

McGlynn went on to become a St. Clair County Circuit Judge after the retirement of St. Clair County Circuit Judge Michael O'Malley in July.

Young will leave the bench before the end of the year, due to his announced retirement.

Schottel also filed a motion earlier this month for nearly $400 in attorney's fees due to a service issue related to Young.

U.S. District Judge Henry Autrey presides.

Schottel represents himself.

Illinois Attorney General Lisa Madigan and Assistant Attorney General Rex Gradeless represent Young.

Richard Korn represents Berry.

The case filed in the in the U.S. District Court for the Eastern District of Missouri is 4:10-CV-1673.

The underlying Anderson case is St. Clair case number 07-L-359.

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