Petition — Berlin v. Nathan
Supreme Court brief1979
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upreme Court, U. S ‘7
.
FILED
APR 25 1979
In THE
Supreme Court of the Gnited
Octoser Term, 1978
pepe RODAK, JR. CLERK
No ¢€8-1631
LEONARD BERLIN,
Petitioner,
VS.
GILBERT NATHAN, HARRIET NATHAN,
FRED BENJAMIN and STUART SHAPIRO,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF ILLINOIS
Wayne B. GIAMPIETRO
134 N. LaSalle Street
Suite 1100
Chicago, Illinois 60602
(312) 236-0606
SamueL W. Wirwer
SamueL W. Witwer, JR.
125 S. Wacker Drive
Suite 2700
Chicago, Illinois 60606
(312) 332-6000
Attorneys for Petitioner
Of Counsel:
JoEL EpELMAN
DeJone, Pouttrock & GIAMPIETRO
Wrrwer, Moran, Burtace & ATKINSON
Midwest Law Printing Co., Chicago 60601, Financial 6-3988
TABLE OF CONTENTS
OPINIONS BELOW 3
JURISDICTION 4
QUESTIONS PRESENTED +
NATURE OF THE RELIEF SOUGHT 5
STATEMENT OF FACTS 7
REASONS FOR GRANTING THE WRIT:
I.
Burgeoning Frivolous Litigation Compels This
Court’s Corrective Intervention 10
I.
Reversal Of The Judgment For Plaintiff By The
Appellate Court Gave Rise To Substantial Con-
stitutional Questions Of Due Process And Equal
Protection Of The Laws Under The Fourteenth
PSA eae ee 11
III.
The Illinois Courts Have The Power, As Well As
The Duty, To Grant Petitioner A Meaningful Rem-
ae lait dactgtid odeceabsmndanptinatiindaenicaciominhadninsreunataabe 19
EE ESS LES ne 30
TS REE TRE CSSA ae OR la-26a
APPENDIX B 27a
APPENDIX C 28a
il
TABLE OF AUTHORITIES
Cases
Anderson National Bank v. Luckett, 321 U.S. 233, 246,
ee A I ar a ncn eh daeeuoninas 13
Armstrong v. Manzo, 380 U.S. 545, 14. L. Ed. 2d 62, 85
Hs ge. | SIRNA SNe det ear sores ieee a eeUT est 14
Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S.Ct.
BEE, BUITIE Dinca tases dices alarcceeniesacsledsoicenieiindaetelaguaashn 14, 15
Betts v. Brady, 316 U.S. 455, 86 L. Ed. 1595, 62 S.Ct.
Sy GUID sis ik ochaoesshicrassacioomcoaclicbesenbindes. ohentalsialtomdiasimssionesets 14
Blue Chip Stamps v. Manor Drug Stor es, 421 U.S. 723,
44 L. Ed. 2d 539, 95 S.Ct. 1917 (1975) ....................-cce0e 23
Boddie v. Connecticut, 401 U.S. 371, 377, 28 L. Ed. 2d
DUR Sh a ree CE cei ae clnie 14, 15, 16
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S.
673, 74 L. Ed. 107, 50 S.Ct. 451 (1930) 0.2. 12
Cafeteria & Restaurant Workers’ Union v. McElroy,
367 U.S. 886, 6 L. Ed. 2d 1230, 81 S.Ct. 1743 (1961) . 16
Case v. Nebraska, 381 U.S. 336, 14 L. Ed. 2d 422, 85
Ry I orate ale a 5
Claflin v. Houseman, 93 U.S. 130 (1876) ...............0......... 6
Coe v. Armour Fertilizer Works, 237 U.S. 413, 423,
59 L. Ed. 1027, 35 S.Ct. 625 (1915) 2.2. -.-nnceeeeee 14
Cripe v. Pevely Dairy Co., 275 Ill. App. 231 (1934) -..... 2
Darling v. Charleston Community Hospital, 33 Ill. 2d
Gs, ER Dict. AI SAD aenercmstiniccieninepnansnitindntsibnnanpoiin 28
Endicott Co. v. Encyclopedia Press, 266 U. S. 985, 69
om Sf eb - RRR emReeereranreenenenl am 13
Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92
ti Ue INGE sicaiien tad Acceesdratatceenshisachein nkebilias 2, 14, 15, 25
Gertz v. Robert Welch Inc., 418 U.S. 323, 41 L. Ed. 2d
Pe Rs TE GD Sek. caccecnimrsdeitsenenadneciacrodannn 26
A EE TET EF a
iii
Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90
S.Ct. 1011 (1970) bad 14, 15, 16
Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510,
85 S.Ct. 1678 (1965) ......... 12, 15
Herbert v. Lando, ...... US. ....... 47 U.S.L.W. 4401,
BE GD sadn cosines cits bostdins oamaabiacauaibibemcdeis 9, 26
Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123, 168, 95 L. Ed. 317, 71 S.Ct. 624 (1951) ........ 13
Kahn v. James Burton Co., 5 Ill. 2d 614, 622, 126 N.E. 2d
IE CD liste icin dccldebaitae cates a in ba ose 27
Kolka v. Jones, 71 N.W. 558, 565 (N.D. 1897) ....000........ 26
Larence v. Hagerman, 56 Ill. 68 (1870) —...002.2. 2
Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230,
44 L. Ed. 147, 20 8.Ct. 620 (1900) nanan 13
Meltzer v. C. Buck LaCraw & Co., 402 U.S. 954, 957-
58, 29 L. Ed. 2d 124, 92 S.Ct. 1624 (1971) -. i. 16
Molitor v. Kaneland Community District No. 302, 18
Ill. 2d 11, 26, 163 N.E. 2d 89, 96 (1959) ...................... 27-28
Mullane v. Central Hanover Trust Co., 339 U.S. 306, 94
L. Ed. 865, 79 S.Ct. 652 (1950) 14
New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d
686, 84 S.Ct. 710 (1964) 9, 15, 17
Pennoyer v. Neff, 95 U.S. 714, 733, 24 L. Ed. 565 (1877) 12
People ex rel. Cutler v. Ford, 54 Ill. 520, 522 (1870) .... 29
Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S.
i. Se TI icicles epic ec tbagobabiosiap hack eed cpnbaihicehasiae 12
Renslow v. Mennonite Hospital, 367 N.E. 2d 1250, 10
Ill. Dec. 484 (1977) 21
Rosenblatt v. Baer, 383 U.S. 75, 15 L. Ed. od 597, 86 S.
Ct. 669, 679 (1966) 21-22
Schroeder v. City of New York, 371 U.S. 208, 212, 9 L.
Ed. 2d 255, 83 S.Ct. 279 (1962) 14
Second Employers Liability Cases, 223 U.S. 1, 56 L. Ed.
327, 32 S.Ct. 164 (1912) ...... 6
Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600,
89 S.Ct. 1322 (1969) ..... ae
iv
Shelley v. Kraemer, 334 U.S. 1, 17-18, 92 L. Ed. 1161,
GE S.Ce. SOG (ROM) cree nccsireriemnnestaneeenenetnemenee 13
Skinner v. Reed-Prentice Division Package Machinery
Co., 70 Ill. 2d 1, 374 N.E. 2d 487, 15 Ill. Dec. 829, 834
(1978) ...... a encniittgsehilecanedaa nadie digdacsnauseen 28
Snaidach v. Family Finance Corp., 395 U.S. 337, 23 L.
Ed. 2d 349, 89 S.Ct. 1820 (1969) ate ... 2, 14,15
Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E. 2d
163 (19665) .....ciccnmeeaenen 28
Testa v. Katt, 330 U.S. 386, 91 L. Ed. 967, 67 S.Ct. 810
(1947) ... 6
Walton v. Norphlett, 56 Il. App. 3d 4, 371 N.E. 2d 978
(1977) 27
Wisconsin v. Constantineau, 400 U.S. 433, 437, 27 L.
Ed. 34 $15, 92 &. Ce. SRP CUES ci cs 14
Statutes and Constitutional Provisions
United States Constitution, Article VI .........................----- 6
United States Constitution, Fourteenth Amendment ..
5, 6, 11, 18
Tilinois Constitution of 1970, Article VI §4(c) ................ 6
Ch. 73 Ill. Rev. Stats. §767.19 22
Ch. 110A Ill. Rev. Stats. §317 6
Miscellaneous
52 Am. Jur. 2d Malicious Prosecution §9 (1970) .......... 24
Birnbaum, ‘‘Physicians Counter-attack: Liability of
Lawyers for Instituting Unjustified Medical Malprac-
tice Actions’’, 45 Fordham L. Rev. 1003
Code of Professional Responsibility, American Bar As-
sociation, D.R. 7-102(A) (1), E.C. 7-10 29
25 Halsbury, The Laws of England §717 (3d Ed. 1958) .. 24
aed
oo aL
tT ee ne
In THE
Supreme Court of the United States
Ocroser Term, 1978
No.
LEONARD BERLIN,
Petitioner,
VS.
GILBERT NATHAN, HARRIET NATHAN,
FRED BENJAMIN and STUART SHAPIRO,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF ILLINOIS
To the Justices of the Supreme Court of the United
States:
Petitioner, Leonard Berlin, respectfully prays that a
Writ of Certiorari issue to review the decision and order
of the Illinois Supreme Court! denying review of the
' The reasons for directing the Writ to the Illinois Supreme
Court, as opposed to a lower court, are set forth at pages 5-6
below. Alternatively, if the Court deems it more appropriate
that the Writ be directed instead to the Illinois Appellate
Court, it is requested that this Petition be so read.
tele:
judgment and opinion of the Illinois Appellate Court,
First Judicial District, reversing a judgment in his
favor by the Circuit Court of Cook County, Illinois upon
a jury verdict.
The Petitioner, a Board-certified Radiologist, had been
the object of a $125,000 malpractice suit brought by
Harriet Nathan for alleged negligent diagnosis and
treatment of an injury to her little finger. In a separate
action, Petitioner Berlin countersued against Nathan
and her attorneys, alleging, inter alia, that the Nathan
suit was groundless and wilfully and wantonly brought
with reckless disregard as to the truth or falsity of the
allegations. Upon trial, the jury specifically found that
the Respondents had brought the suit in a wilful and
wanton manner, without probable cause to believe that
any of the allegations against Petitioner had any
substance in fact. It awarded Petitioner $2,000 actual
and $6,000 punitive damages.
The Illinois Appellate Court, First Judicial District,
reversed the judgment, holding that the Petitioner had
not met Illinois’ restrictive criteria for the ancient form
of action of Malicious Prosecution, including the ne-
cessity for a showing of “special injury.”
Petitioner then petitioned the Illinois Supreme Court
for leave to appeal, contending, inter alia, that the
* “Special injuries” have been defined in Illinois decisions
based on ancient common law criteria, as consisting of injury
of a highly unusual and distinctive nature, such as seizure of
goods by writ of attachment (Larence v. Hagerman, 56 Ill. 68
(1870), and bodily arrest (Cripe v. Pevely Dairy Co., 275
Ill.App. 231 (1934) ). Intervening decisions of this Court in
Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L.Ed.2d
349, 89 S.Ct. 1820 (1969), and Fuentes v. Shevin, 407 U.S. 67,
32 L.Ed.2d 556, 92 S.Ct. 1983 (1972) have largely eradicated
those few procedures wherein “special injury” could be said to
be present in a court case.
2 Sarena 2
Per
coin
Illinois Appellate Court’s decision, by adhering to these
outmoded and unworkable standards of pleading and
proof, effectively deprived him of access to the courts to
redress his actual and proven injury, in violation of his
Constitutional rights under the Fourteenth Amendment
of the Constitution of the United States. He further
contended that such appeal was as of right to the Illinois
Supreme Court, since under that Court’s own rules,
Federal Constitutional issues which first emerge by
reason of a decision of the Illinois Appellate Court must
be reviewed by the Illinois Supreme Court. That Court
denied the Petitioner’s request for leave to appeal,
necessarily rejecting Petitioner’s claim that Federal
Constitutional issues had arisen. Petitioner’s Petition for
Reconsideration, reasserting these same contentions, was
similarly denied.
OPINIONS BELOW
——_——_—_
The Opinion of the Illinois Appellate Court, First
Judicial District, rendered on September 14, 1978, is
reported at 64 Ill.App.3d 940, 381 N.E.2d 1367 (1978).
That Opinion is reproduced as Appendix A to this
Petition. The Illinois Supreme Court rendered no
opinion in refusing to grant Petitioner’s Petition for
Leave to Appeal. Likewise, no opinion accompanied its
denial of Petitioner’s Petition for Reconsideration. The
aforesaid Orders of the Illinois Supreme Court are
attached hereto as Appendix Exhibits B and C,
respectively. .
a on
JURISDICTION
The Illinois Supreme Court denied Petitioner’s Peti-
tion for Leave to Appeal on January 25, 1979. It denied
Petitioner’s Petition for Reconsideration on March 12,
1979. The jurisdiction of this Court rests on 28 U.S.C.
§ 1257(3).
QUESTIONS PRESENTED
1. Whether the Illinois Supreme Court erred in
failing to identify and consider, in conformity with its
own rules, substantial questions of due process and
equal protection under the Fourteenth Amendment
which emerged as a result of the Illinois Appellate
Court’s reversal of the trial court judgment and damage
award based on special jury findings that Respondents
had wilfully and wantonly brought a groundless lawsuit
against Petitioner, to his resultant injury?
2. Whether the granting of immunity to attorneys
and litigants from having to respond in damages for
bringing wilful, wanton and groundless (as opposed to
merely negligent) lawsuits, to the injury of others,
violates the victim’s right of access to the courts, as
guaranteed by the due process and equal protection
provisions of the Fourteenth Amendment?
—5—
NATURE OF THE RELIEF SOUGHT
While Petitioner will show that the Illinois Appellate
Court’s decision effectively deprived him and persons
similarly situated of meaningful access to the courts to
redress injury in violation of Federal Constitutional
standards, no direct review and reversal of that decision
is sought herein. The Supreme Court is not asked at this
time to rule definitively concerning the Constitutional
adequacy of Illinois’ tort law, nor is it asked to
affirmatively refashion a new Illinois remedy which will
pass Constitutional muster. Rather, the sole objective of
this Petition is to correct the Illinois Supreme Court’s
erroneous refusal to identify substantial Federal Con-
stitutional questions which necessarily arose when the
Appellate Court reversed the judgment that had been
awarded to Dr. Berlin and to cause the Illinois Supreme
Court to determine whether Illinois law affords a
remedy in the circumstances of this case meeting
Federal requirements of due process and equal pro-
tection. Cf. Case v. Nebraska, 381 U.S. 336, 81 S.Ct.
1486 (1965).
Since, as we will show below, the case does implicate
serious Federal Constitutional questions, it was not only
the right but the duty of the Illinois Supreme Court to
hear and consider those issues in a review of the
Appellate Court’s decision.? This Honorable Court is the
final arbiter in determining the presence or absence of
such federal issues and it should remand the case to the
’ The inescapable Fourteenth Amendment considerations of
due process and equal protection were menanigt Dents | pre-
sented by Petitioner to the Illinois Supreme Court in his
Petition for Leave to Appeal, and in his Petition for
Reconsideration. [n his Petition for Leave to Appeal, Peti
tioner stated, in pertinent part:
(Footnote continued on following page)
t+
Supreme Court of Illinois, with instructions to properly
hear and consider those issues in accordance with its
jurisdictional duty; also, to determine whether Illinois
’ continued
“In reversing the jury verdict and trial court judgment,
the Appellate Court erroneously deprived Plaintiff of due
process of law as guaranteed ... by the Fourteenth
Amendment to the United States Constitution” (Petition
for Leave to Appeal, at 4).
It was further stated as follows:
“By holding that the Plaintiff has not stated a cause of
action, the Appellate Court has deprived him of due
rocess of law and has granted immunity to lawyers and
fitieants which is not sanctioned by the law.”
* * * *
“To deny relief is to deny litigants the same rights which
are granted to others similarly harmed.” (Petition for
Leave to Appeal, at 27, 28)
4 It is indisputably the duty of the Illinois Supreme Court,
under its own rules and Illinois Constitutional provisions, to
hear and consider Federal Constitutional questions which
emerge as a result of action taken by _the P llate Court.
Rule 317 of the Illinois Supreme Court Rules, Ill.Rev.Stat.Ch.
110A, § 317 provides, in pertinent part, that “appeals from the
Appellate Court shall lie to the Supreme Court [Illinois] as a
matter of ee in cases in which a question under the
Constitution of the United States . . . arises for the first time
in and as a result of the action of the Appellate Court.”
Similarly, Article VI, § 4(c) of the Illinois Constitution of
1970, provides in pertinent part:
“Appeals from the Appellate Court to the Supreme Court
are a matter of right Pa question under the Constitution of
the United States . . . arises for the first time in and as a
feo se! of the action of the Appellate Court . . . ” (Emphasis
a )
These cited provisions are not merely matters of state law
which superficially might be viewed as outside of the
cognizance of the United States Supreme Court; rather, they
are imbued with a Federal Constitutional aspect which under
the Supremacy Clause, Article VI of the U.S. Constitution,
cannot be left solely and finally to a state tribunal. The
inquiry posed by these provisions necessarily involves issues
which are ultimately the province of this Court. Claflin v.
Houseman, 93 U.S. 130 (1876); Second Employers Liability
Hear 223 U.S. 1 (1912); and Testa v. Katt, 330 U.S. 386
~ o
law affords, in the circumstances of the instant case, a
judicial remedy meeting at least the minimum require-
ments of due process and equal protection.
STATEMENT OF FACTS
—_—_—_———_
Dr. Leonard Berlin is a Board-certified Radiologist. In
October, 1973, Dr. Berlin reviewed and interpreted x-
rays taken of Harriet Nathan’s dislocated finger. Mrs.
Nathan was thereafter treated by other doctors.
Some months later, Gilbert Nathan, Harriet’s hus-
band, and a practicing attorney, informed Petitioner in
a telephone call that he was going to bring a
malpractice suit against one of the physicians who had
treated his wife and that Petitioner would also be named
a defendant.
Just short of t vo years after the injury, the Defend-
ant-Respondents, Fred Benjamin and Stuart Shapiro,
attorneys, filed a medical malpractice suit in the Circuit
Court of Cook County naming Dr. Berlin, Dr. William
Meltzer and Skokie Valley Community Hospital defend-
ants, charging each of them with medical malpractice
(sometimes herein referred to as the “Nathan case”).
Prior to the preparation of the filing of that suit, the
attorneys did not communicate in any way with any of
the doctors who had treated Mrs. Nathan, nor did they
attempt to do so. At the trial of this cause, Fred
Benjamin, the attorney actively prosecuting Mrs. Na-
than’s suit, admitted that he had no evidence or
information to support the allegations of medical
malpractice which were made against Dr. Berlin in
—s—
Mrs. Nathan’s complaint which he had drafted and
filed. Likewise, Mrs. Nathan admitted that in consulta-
tion with her subsequently engaged physicians, there
was no intimation that Dr. Berlin’s services to her had
in any sense been improper.
On October 22, 1975, shortly after the filing of the suit
against him, Dr. Berlin filed suit in the Circuit Court of
Cook County against Respondents. His suit was con-
solidated with Mrs. Nathan’s medical malpractice suit
by the Circuit Court. On the date set for trial, Harriet
Nathan voluntarily dismissed her medical negligence
suit against all defendants. The cause proceeded to trial
on Dr. Berlin’s amended complaint before a jury. At the
conclusion of the evidence, the jury returned a verdict in
favor of Dr. Berlin, awarding him Two Thousand
Dollars ($2,000) actual damages and Six Thousand
Dollars ($6,000) punitive damages. Also, the jury
returned answers to special interrogatories finding that
each of the defendants had been guilty of wilful and
wanton conduct and without any reasonable or probable
cause in filing their suit against Dr. Berlin.
On appeal, the Appellate Court of Illinois reversed. It
held that the proper course of action which a wrongfully
sued person must follow in Illinois to redress any
injuries which he may have suffered as a result of such
a lawsuit is under the common law action of Malicious
Prosecution. It made no reference whatsoever to the
facts adduced at the trial, but relied solely on the
pleadings in the suit, holding that Dr. Berlin had not
stated a cause of action. The Appeliate Court held that
in order to plead such a cause of action it must be
alleged, in Illinois, (a) that the plaintiff in the prior suit
had acted maliciously and without probable cause, (b)
that the prior suit had terminated in favor of the
—9—
defendant therein (that is, the plaintiff in the subsequent
action such as the case at bar), and (c) that the latter
must be shown to have suffered “special injury” of a
kind not necessarily found in any and all suits
prosecuted to recover for like causes of action. Applying
these highly restrictive and ancient common law stand-
ards, the Appellate Court held that Dr. Berlin had failed
to plead that the prior cause had terminated in his favor
(since instead it had been dismissed by Mrs. Nathan) or
to plead that he had suffered “special injury.” Such
special injury was defined by the Appellate Court to
include arrest of the person, seizure of his property and
other elements and events scarcely capable of occurrence
and proof in modern life. Notwithstanding the fact that
Petitioner had pleaded that Respondents had charged
and alleged in their complaint professional malpractice
against him “with reckless disregard as to [their] truth
or falsity”, the Appellate Court held that such pleading
was not sufficient to allege “malice.”
Petitioner filed his Petition for Leave to Appeal to the
Illinois Supreme Court. That Court’s denial of the said
Petition, and of reconsideration, as set forth above, then
followed.
This holding is obviously contrary to the definition of
malice employed by this Court in New York Times Co. v.
Sullivan, 376 U.S. 354, 84 S.Ct. 710 (1964). Most recently, this
Court has reaffirmed that malice has long been recognized to
include an improper pu pose, including “the yond .: belief of
the defendant in the truth of his statement, or u e ill will
which the defendant might have intel towards the ‘delond-
ant.” Herbert v. Lando, ..... AS me . &.Ct. , 47 US.
Law Week 4401, 4403 (1979).
—10—
REASONS FOR GRANTING THE WRIT
BURGEONING FRIVOLOUS LITIGATION COMPELS
THIS COURT'S CORRECTIVE INTERVENTION.
This case presents a question which goes to the very
heart of our judicial system. The Petitioner proved to
the satisfaction of a jury that the suit charging him with
medical malpractice had been brought in a wilful and
wanton manner without any reason or probable cause to
believe that he had been guilty of the grave professional
charges made against him. The effect of the decision by
the Illinois Appellate Court, reversing the trial court
judgment, is virtually to grant total immunity to all
attorneys and litigants who commence legal proceedings
no matter how irresponsible, frivolous or malicious they
may be in their motivation and pleading. The Illinois
Supreme Court, in refusing to grant Petitioner’s Petition
for Leave to Appeal, failed to recognize that the
Appellate Court decision, measured in the context of
present-day conditions, called into serious question
Petitioner’s Federal Constitutional right to court access
as a matter of due process and equal protection of the
laws.
As matters now stand, Petitioner has been deprived of
any meaningful access to the Illinois courts. The decision
of the Appellate Court sets attorneys and litigants in a
separate category, apart from all others. It grants them
as officers of the court immunity from any answerability
for intentionally and recklessly inflicting injury upon
another sirnply because they have done so under the
mantle of “judicial process.” Ironically, victims of such
misconduct, like Dr. Berlin, are denied effective access
-~
|
to the same Courts in which the wrong occurred, all in
the name of upholding principles of open access to
litigation!
In this Age of Litigation the civil law case backlogs of
American courts have increased alarmingly in con-
sequence of frivolous and unfounded suits all too often
brought for their in terrorem settlement potential, as in
the Nathan case. Yet, most state appellate courts have
failed to superintend the correction of the problem. If
the Writ of Certiorari is granted, Petitioner will show in
his brief the statistics revealing how consistently, in
instance after instance, they have reversed trial courts
which sought to provide effective relief to victims of
maliciously or frivolously filed lawsuits.
In short, it is Petitioner’s position that attorneys and
the litigants they represent—just as anyone else in our
society—must be held answerable in courts of justice for
inflicting grievous harm and injury on innocent persons.
This is particularly true where the wrongdoers act in
the extreme manner shown here. The great social cost
of such frivolous litigation and the manner in which it is
undercutting respect for the administration of justice,
alone, warrant the intervention of this Honorable Court
to provide a superintending and correcting influence.
Il.
REVERSAL OF THE JUDGMENT FOR PLAINTIFF
BY THE APPELLATE COURT GAVE RISE TO SUB-
STANTIAL CONSTITUTIONAL QUESTIONS OF DUE
PROCESS AND EQUAL PROTECTION UNDER THE
FOURTEENTH AMENDMENT.
As will be shown under Heading III, Illinois has so
severely limited and conditioned the tort of malicious
prosecution that such cause of action is virtually non-
a ee
existent for persons like Dr. Berlin. Where an_in-
dividual, such as Petitioner, has been injured by the
wrongful, wilful, wanton and malicious prosecution of a
civil suit charging him with professional misconduct,
due process requires that he be provided a judicial
remedy for that injury. A total denial of such a remedy
is a denial of access to the courts, in violation of the due
process and equal protection clauses of the Fourteenth
Amendment.
The requirement of due process of law, as guaranteed
by the Fourteenth Amendment, embraces those “fun-
damental principles of liberty and justice which lie at
the base of all our civil and political institutions.” Powell
v. Alabama, 287 U.S. 45 (1932). This is so whether or not
those principles are specifically dealt with in another
part of the Constitution. /d. at 67; Griswold v. Con-
necticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678
(1965). Here we deal with the very essence of our
concept of ordered liberty—the judicial system. Without
that system none of the other rights are enforceable.
There have been many situations in which it has been
held that the procedures of state courts violate federal
due process. The action of state courts in imposing
penalties or depriving parties of other substantive rights
without providing adequate notice and opportunity to
defend has long been regarded as a denial of due process
of law guaranteed by the Fourteenth Amendment.
Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S.
673 (1930). Due process of law, when applied to judicial
proceedings, means a course of legal proceedings
according to rules and principles which have been
established in our system of jurisprudence for the
protection and enforcement of private rights. Pennoyer
v. Neff, 95 U.S. 714, 733 (1877). It requires a proceeding
which follows forms of law appropriate to the case, and
—13—
just to the parties affected. Endicott Co. v. Encyclopedia
Press, 266 U.S. 285 (1924).
Due process must be determined “by taking into
account the purposes of the procedure and its effect
upon the rights asserted and all other circumstances
which may render the proceedings appropriate to the
nature of the case.” Anderson National Bank v. Luckett,
321 U.S. 233, 246 (1944). The fundamental requirement
of due process is an opportunity to be heard upon such
notice and at such proceedings as are adequate to
safeguard the right for which protection is invoked.
Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230
(1900). Procedural due process rights attach where state
action condemns a person to “suffer grievous loss of any
kind.” Joint Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123, 168 (1951).
In Shelley v. Kraemer, 334 U.S. 1, 17 and 18, 92 L. Ed.
1161, 68 S. Ct. 886 (1948) this Court noted that the
Fourteenth Amendment protections extend to the action
of state courts as well as to other state infringements.
The Court said:
“It has been recognized that the action of state
courts in enforcing a substantive common law rule
formulated by those courts, may result in the denial
of rights guaranteed by the Fourteenth Amend-
ment, even though the judicial proceedings in such
cases may have been in complete accord with the
most rigorous conceptions of procedural due proc-
ess.
* * *
“The short of the matter is that from the time of the
adoption of the Fourteenth Amendment until the
present, it has been the consistent ruling of this
Court that the action of the States to which the
Amendment has reference includes action of state
courts and state judicial officials. Although, in
otehiins
construing the terms of the Fourteenth Amend-
ment, differences have from time to time been
expressed as to whether particular types of state
action may be said to offend the Amendment’s
prohibitory provisions, it has never been suggested
that state court action is immunized from the
operation of those provisions simply because the act
is that of the judicial branch of the state govern-
ment.”
The right to be heard is “one of the most fundamental
requisites of due process” (Schroeder v. City of New
York, 371 U.S. 208, 212, 9 L. Ed. 2d 255, 259; 83 S. Ct.
279 (1962) ). It is a settled principle, that a state must
afford its citizens a meaningful opportunity to be heard
(Boddie v. Connecticut, 401 U.S. 371, 377, 28 L. Ed. 2d
113, 91 S. Ct. 780 (1971) ). See also Mullane v. Central
Hanover Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct.
652 (1950); Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d
287, 90 S. Ct. 1011 (1970); Sniadach v. Family Finance
Corp., supra; Armstrong v. Manzo, 380 U.S. 545, 14 L.
Ed. 2d 62, 85 S. Ct. 1187 (1965). A person is entitled
“upon the most fundamental principles to a day in court
... ” (Coe v. Armour Fertilizer Works, 237 U.S. 413,
423, 59 L. Ed. 1027, 35 S. Ct. 625 (1915) ). This is because
“fundamental fairness” (Beits v. Brady, 316 U.S. 455, 86
L. Ed. 1595, 62 8. Ct. 1252 (1942) requires that when
one’s property rights are affected, he must be granted
the right to be heard.
The right to obtain entry into the court system is an
obvious prerequisite to the right to be heard. “When a
person’s good name, reputation, honor or integrity is at
stake ... notice and an opportunity to be heard are
essential.” (Wisconsin v. Constantineau, 400 U.S. 433,
437, 27 L. Ed. 2d 515, 519, 92 S. Ct. 507 (1971) ). There
is no difference between the State’s deprivation .of
property (Fuentes v. Shevin, supra), privileges (Bell v.
—15—
Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586
(1971) ), or welfare benefits (Goldberg v. Kelly, supra),
on the one hand, and a state’s denial, on the other, of a
right of action to a plaintiff who has been injured in
reputation and profession, under the conditions pre-
sented in this case.
Certainly a person’s interest in his good name,
reputation, honor and integrity are as fundamental as
the rights to privacy (Griswold v. Connecticut, supra),
marriage-divorce (Boddie, supra), travel (Shapiro v.
Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322
(1969) ), property (Sniadach, supra, and Iuentes, supra),
and welfare benefits (Goldberg v. Kelly, supra). Con-
sequently, this Court has held that a person’s right to
protect his privacy, good name and reputation from
malicious invasion is paramount even to those First
Amendment rights of the news media (New York Times
v. Sullivan, supra). In the case at bar, the jury returned
a verdict finding that the defendants had engaged in
wilful and wanton conduct. Yet Dr. Berlin was refused a
remedy and denied recovery of the trial judgment by the
reversal by the Appellate Court and by the refusal of the
Illinois Supreme Court to grant appeal.
As was said by this Court in Boddie v. Connecticut,
supra, 401 U.S. at 379, “the right to a meaningful
opportunity to be heard within the limits of practicality,
must be protected against denial by particular laws that
operate to jeopardize it for particular individuals.”
There, this Court held that a state could not deny
indigent individuals access to the courts for the purpose
of dissolving marital relationships. This holding was
based on the right to due process. What was said there
applies here as well. When the state requires a
defendant to appear and defend himself in court, the
state must similarly grant him an adequate remedy for
a we
harm which is done when it*is found that there was an
improper motive for hailing him into court.
It was also pointed out in Boddie that the state
maintained an effective monopoly for resolution of
disputes involving the marriage relationship: that, since
man and wife could not mutually and privately agree to
divorce without court sanction, denial of their access to
the courts foreclosed their exercise of a possible right of
divorce. So, too, here, the refusal of Illinois courts to
afford a viable and actual remedy in the circumstances
of the case at bar represents a one-sided monopolization
of judicial machinery, to the prejudice of citizens such as
Dr. Berlin. As Mr. Justice Black noted in his dissent
with reference to certain petitions for certiorari pending
at the time of the decision of Boddie, appearing in
Meltzer v. C. Buck LaCraw & Co., 402 U.S. 954, 957-958,
29 L. Ed. 2d 124, 92 S. Ct. 1624 (1971):
“... The wrong that gives rise to a right of
damages in tort exists only because the society’s
lawmakers have created a standard of care and a
duty to abide by that standard. The alternatives to
resort to judicial process in tort cases are negotia-
tions and settlements, abandonment of recovery,
private self-help, and perhaps insurance. With the
exception of insurance, the alternatives are exactly
the same as in a divorce case—negotiate a separa-
tion agreement, decide to continue a marriage
relationship, or violate the law.”
Petitioner is well aware that “consideration of what
procedures due process may require under a given set of
circumstances must begin with the determination of the
precise nature of the government function involved, as
well as of the private interest that has been affected by
the government action”. (Cafeteria & Restaurant Work-
ers’ Union v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d
1230, 1236, 81 S. Ct. 1743 (1961); Goldberg v. Kelly,
=, ae
supra). However, there is no countervailing state interest
in protecting those who maliciously file litigation which
they know to be without foundation at the expense of the
innocent victim. We are not dealing, here, with a case
where a legitimate litigant’s rights might be “chilled” by
allowing a defendant to countersue simply because the
original plaintiff did not prevail or even if he were
simply chargeable with ordinary negligence.
If the law of Illinois, applicable to the wrongs and
injuries of the type suffered by Dr. Berlin, is as
arbitrary, capricious and unreasoned as would appear
from the Appellate Court’s statement of criteria for a
cause of action, then such Illinois law must indeed
violate all meaningful due process requirements. To
illustrate, the first prerequisite announced by the
Appellate Court was that Dr. Berlin needed to plead and
prove that the Nathan case terminated in Berlin’s favor,
a requirement that really means that the control of Dr.
Berlin’s remedy was in the hands of Nathan and her
attorneys. Thus, all that they needed to do to defeat Dr.
Berlin’s remedy and to immunize themselves against
suit was to take a dismissal of the Nathan case before
proceeding to trial, the thing that actually occurred!
Secondly, the Appellate Court’s definition of “malice”
is obviously wrong, constituting a wide departure, not
only from New York Times Co. v. Sullivan, supra, and
cases which have followed it, but also from any logical
and reasonable interpretation of the pleadings in
the case at bar concerning the wilful and wanton
conduct of the defendants and that they had pro-
ceeded with reckless disregard as to the truth or
falsity of the charges made against Dr. Berlin. As shown
elsewhere in this brief, the third requirement of special
injuries, when tested in our modern society, is an
=
arbitrary and virtually impossible burden of pleading
and proof since most of the elements of the “special
injury” known to the common law have long since ceased
to exist or have become so infrequent in modern-day
occurrence as to be virtually meaningless as operative
criteria and constraints on the nature of injuries which
may be the subject of recoverable damages.
For these reasons the Illinois Supreme Court clearly
erred in failing to identify the substantial Federal
Constitutional questions which emerged in the Appellate
Court reversal; also in failing under its own rules and
Supremacy clause considerations to grant an appeal of
right to Dr. Berlin which would have afforded him the
means of demonstrating that under proper interpreta-
tion of expanding and rational legal concepts there could
exist an Illinois remedy and a way out of the amazing
legal dilemma confronting him and others similarly
situated.
The issuance of the Writ of Certiorari by this
Honorable Court would have an immediate and salutory
effect in confronting the problems of frivolous litigation,
permitting an authoritative determination by the II-
linois Supreme Court of the question whether there ex-
ists in Illinois civil law any viable or meaningful remedy
for persons injured in privacy, reputation or otherwise
in the manner presented by this case; also permitting a
review by that Court to determine whether any such
remedy as may exist. can meet the due process and equal
protection requirements of the Fourteenth Amendment.
Petitioner clearly recognizes that the orderly ad-
ministration of justice necessarily requires open access
to a state’s courts for all who proceed in good faith to
litigate proper causes. That necessary requirement, es-
sential to the due administration of justice, can be up-
held and advanced consistently with relief to Petitioner
essential in the special circumstances of this case if he is
to encounter anything other than a repeatedly closed
door as he seeks a viable judicial remedy. While courts
must remain open to all who have legitimate grievances,
such, of course, was not the situation here presented.
Petitioner submits that the courts of this nation must
protect themselves against harassing litigation which
has no basis or justification other than a design to set
the stage for in terrorem settlement recoveries regard-
less of the harm or injury callously done to the privacy,
reputation and rights of the victims singled out for legal
assault. While the instant case does not confront the
total problems facing judicial systems in the field of
frivolous litigation, it does offer a major first step which
would provide a proper bridge in seeking to uphold the
competing demands for open access to the courts by the
legitimate majority of litigants and their attorneys while
affording access to the court, consistent with due process
and equal protection, to those like Dr. Berlin who are
maliciously wronged by those who initially misuse the
privilege of access.
III.
THE ILLINOIS COURTS HAVE THE POWER, AS
WELL AS THE DUTY, TO GRANT PETITIONER A
MEANINGFUL REMEDY.
This case arises out of a medical setting. While this is
not the only context in which frivolous suits are found, it
is doctors who seem to be in the forefront of those who
have sought to convince the courts that some relief be
made available for injury inflicted by frivolous litigation
—20—
‘such as this. Implicit in the special findings of the jury
is the unescapable fact that the Nathan suit was brought
for nothing less than legal harassment—to play on the
system where every suit, no matter how frivolous, has
some settlement value. Even a baseless and unmeri-
torious suit must be defended at some cost to a
defendant.
There can be no question that the filing of a lawsuit,
especially against a professional, publicly charging him
with dereliction in his professional duties, causes great
harm to such an individual. The mere filing of such a
suit in a court of record inevitably leads to impairment
of reputation, mental distress, loss of time from business
pursuits, and increase of malpractice insurance
premiums or perhaps even cancellation of insurance.
The personal effects upon such a professional person, his
privacy, and reputation, are profound. The filing of such
a suit works a significant change upon the physician’s
attitude toward his patients, to the point that he prac-
tices a kind of “defensive” medicine which is expensive
to the patient and often counterproductive, adversely
affecting the overall quality of medical services for
everyone. In addition, there is an adverse impact upon
the judicial system itself, in terms of increased numbers
of suits which unduly burden court personnel and
facilities. See “Physicians Counter-attack: Liability of
Lawyers for Instituting Unjustified Medical Malpractice
Actions,” 45 Fordham L.Rev. 1003, by Sheila Birn-
baum.
The magnitude of the problem was set forth eloquent-
ly by Mr. Justice Underwood of the Illinois Supreme
Court recently when he said:
“I believe we have finally reached the point where
the public can no longer or will no longer bear the
economic burden of our present-day system of tort
law. Automobile insurance rates have reached ab-
surd heights, rapidly, and the overbearing cost of
medical malpractice insurance with its attendant
social ills, has become a matter of common
knowledge. In some states, the so-called malpractice
crisis has resulted in the closing of hospital
emergency services, the withdrawal of insurance
underwriters from the field, and the abandonment
by some physicians of their chosen specialties.”
Renslow v. Mennonite Hospital, 367 N.E.2d 1250, 10
Ill. Dec. 484, 499 (1977).
It is not so much the tort system itself, but the abuse of
that system which has led to the problems cited by Mr.
Justice Underwood. The courts certainly have the duty
to find a remedy for that abuse. There is no question
that many suits, not only against doctors, but against
others as well, are brought for the sole purpose of in-
ducing a settlement without any intention that the case
be continued to a trial, since the plaintiff and his at-
torney know full well that at such trial they could not
possibly hope to prevail. Often they are withdrawn on
the eve of trial as in the voluntary dismissal of the
Nathan case. However, the high costs of defending such
a suit makes it probable that the defendant, often
represented by an insurer, will settle in order to avoid
costly and time-consuming litigation. The institution of
such suits wilfully, wantonly and without cause is clear-
ly against the policy of the law. Yet, such suits continue
to multiply.
The courts have long held that an individual’s reputa-
tion is entitled to respect and protection. Thus, Mr.
Justice Stewart has said:
“|. . the First and Fourteenth Amendments have
not stripped private citizens of all means of redress
for injuries inflicted upon them by careless liars.
The destruction that defamatory falsehood can
bring is, to be sure, often beyond the capacity of law
—22—
to redeem. Yet, imperfect, though it is, an action for
damages is the only hope for vindication for redress
the law gives to a man whose reputation has been
falsely dishonored.” Rosenblatt v. Baer, 383 U.S. 75,
92, 86 S. Ct. 669, 679 (1966, concurring opinion).
While that statement was made in the context of an
action for defamation, the occasion on which the damag-
ing statements are made should not control the result.
Indeed, the fact. that such statements are recklessly
made in court proceedings gives them an indelibility
which is not present elsewhere. Having been made in a
legal proceeding, they are given more currency and
weight. Their existence on the public record continues
indefinitely. Being a matter of public record, they are
subject to indefinite resurrection and repetition.
Physicians are particularly susceptible to being harm-
ed by such statements. Under Illinois law they are sub-
jected to mandatory disclosure and dissemination of the
information contained in medical negligence suits filed
against them. Ch. 73 Ill. Rev. Stats., § 767.19 requires
that all suits alleging liability on the part of any physi-
cian for medically related injuries shall be reported to
the Director of Insurance. He is mandated to maintain
complete records of all such claims and report that in-
formation to the appropriate disciplinary and licensing
agencies. Furthermore, the application for renewal of
license from the Illinois Department of Registration and
Education requires the physician to answer the follow-
ing question: “Have any lawsuits been filed against you
charging malpractice, fraud, or unethical conduct?” (P.
Ex. 12) Thus, the Department of Registration and
Education, for some purposes, equates an allegation of
negligence against a doctor with deliberate and wilful
wrongdoing.
_
These administrative requirements are specifically
limited to medical personnel. Any other person who is
charged with negligence or misconduct more serious, is
not required to have that information maintained by any
official department or agency of the State of Illinois.
Yet, the mere filing of a suit against a physician,
whether it have any validity or be made of whole cloth,
is indelibly imprinted upon his record. The damaging
effect of groundless malpractice suits upon the average
doctor is apparent. The mere institution of a suit against
him is sufficient to place him in jeopardy of further ac-
tion by other official agencies of the State.
There is no doubt that the misuse of the courts has
become a serious problem in the general administration
of justice. This was recognized recently by this Court in
a case involving the right of an individual to sue for
damages under the Securities Laws of the United
States. In Blue Chip Stamps v. Manor Drug Stores, 421
U.S. 723, 740, 95 S. Ct. 1917 (1975), the Court expressed
great concern about the danger of vexatious and un-
founded litigation, recognizing that a complaint, “which
by objective standards may have very little chance of
success at trial has a settlement value to the plaintiff out
of any proportion to its prospect of success at trial so
long as he may prevent the suit from being resolved
against him by dismissal or summary judgment.” The
Court recognized that “the very pendency of the lawsuit
' may frustrate or delay normal business activity of the
defendant which is totally unrelated to the lawsuit.” /d.
The Cireuit Court of Cook County and the jury
recognized this. The Appellate and Illinois Supreme
Courts did not. The Appellate Court explicitly, and the
Illinois Supreme Court by its silent acquiescence,
relegated Petitioner to an ancient common law remedy
which exists in theory only.
Illinois is in the minority in requiring that a malicious
prosecution plaintiff plead and prove “special damages”
in order to make out a cause of action. Indeed, that view
is a perversion of the English rule. The requirement un-
der the English rule that special injury be shown before
malicious prosecution will lie is based upon the premise
that in the prior litigation the prevailing party would be
granted his full costs and attorney’s fees and thus would
be made largely whole for any wrong done him in that
litigation. 25 Halsbury, The Laws of England, § 717 (3d
Ed. 1958); 52 Am. Jur. 2d Malicious Prosecution § 9
(1970). Such recoveries were not carried forward in the
Illinois law.
Any protection purportedly given by the present cause
of action for malicious prosecution in Illinois is illusory.
An analysis of such cases brought in Illinois since 1848
demonstrates that fact most clearly. There are 191
reported decisions in Illinois dealing with malicious
prosecution. The great majority of them were deter-
mined in favor of the defendant. A breakdown of those
cases shows the following:
Ruling for Defendant in Circuit Court—
affirmed on appeal 57
Ruling for Defendant in Circuit Court—
reversed and remanded 14
Ruling for Plaintiff in Circuit Court—
reversed and remanded 38
Ruling for Plaintiff in Circuit Court—
reversed outright 41
Ruling for Plaintiff in Circuit Court—
affirmed on appeal 41
Thus, in only 21% of those cases for malicious prosecu-
tion which have been reported has a plaintiff been able
to obtain and sustain a recovery. Of those 41 cases where
the plaintiff has ultimately prevailed, 33 have arisen out
of an underlying criminal suit. Only eight have arisen
out of an underlying civil suit—4% of the malicious
prosecution suits decided on appeal.
Thus, it will be seen that, in Illinois, the old common
law malicious prosecution cause of action simply gives
no substantial protection to those who are damaged by
the wrongful filing of litigation against them. It is a
dead letter, in fact and in legal utility.
“Special injury” situations in which a person’s proper-
ty may be seized in a judicial proceeding prior to final
judgment against him have been shrinking steadily.
Thus, for example, the Court has held that replevin
statutes which authorize seizure of a person’s possessions
without a prior hearing where the defendant has an op-
portunity to be heard are violative of due process.
Fuentes v. Shevin, supra. In fact, the instances of direct
interference with a person’s property by virtue of
judicial proceedings have shrunk almost to the
vanishing point, except where it has been held after a
full determination that such seizure is justified. In
effect, therefore, to hold that special damages must be
demonstrated before a malicious prosecution cause of ac-
tion may be brought is to hold that no malicious
prosecution suit may arise out of a civil proceeding.
It is manifest that this condition does not provide the
public with any meaningful protection against wrongful-
ly filed suits. Not only must a cause of action serve to
protect the individual, but equally it must protect the in-
terests of society as well.6 Thus it has been said:
® Suits such as Petitioner’s will not chill the rights of the
honest litigant. This Court has stated recently that there is no
— or constitutional inhibition against chilling knowing
alsity:
(Footnote continued on following page)
—%—
“The malicious prostitution of legal remedies to sub-
serve unworthy personal ends is not only an injury
to the victim of the particular persecution, but also
to society at large, if it is suffered to go unwhipped
of justice. If the law will not punish such conduct,
public confidence in the merits of our system of
jurisprudence must inevitably be shaken, and the
courts themselves will seem to have forsaken their
high function as protectors and vindicators of in-
vaded rights, and to have become, instead, the ac-
complices of evil men.” Kolka v. Jones, 71 N.W. 558,
565 (N.D. 1897).
To argue, as the Illinois Appellate Court did, that
relaxation of the strict common law requirements of
special damages will chill the honest litigant, and deter
the bringing of meritorious claims is to assume a result
which has no empirical basis. The fact that the Illinois
rule is a minority one in this area goes far to
demonstrate that fallacy. Certainly, there is no reason to
believe that those states in the majority, which do not re-
quire such a showing of “special injury” have found this
to be a problem or consequence of adopting a
meaningful remedy. There is nothing to indicate a trend
toward the minority view which would occur if that
were the fact. Instead, the number of suits such as the
instant one which are being filed show just the
6 continued
“But if the claimed inhibition flows from the fear of
damages liability for publishing knowing or reckless
falsehoods, those effects are preeeesy what New York
Times and other cases have held to be consistent with the
First Amendment. Spreading false information in and of
itself carries no First Amendment credentials. ‘T]here is
no constitutional value in false statements of fact.’ Gertz v.
Robert Welch, Inc., 418 U.S., at 340.”
=
opposite—that the number of spurious suits is con-
stantly increasing to the detriment of all society.
To fail to respond to such a situation is not merely to
deny those such as Petitioner due process of law; it is
also to deny our unique heritage of the common law. The
glory of the common law is its ability to accommodate
and respond to changing societal values. A slavish rote
adherence to orthodox rules drawn arbitrarily from the
distant past inhibits that capacity for change which is
necessary in a changing society. The Illinois Supreme
Court itself has said:
“Every person owes to all others a duty to exercise
ordinary care to guard against injury which may
naturally flow as a reasonably probable and
foreseeable consequence of his act, and the law is
presumed to furnish a remedy for the redress of
every wrong. The duty to exercise ordinary care to
avoid injury to another does not depend upon con-
tract, privity of interest, or the proximity of
relationship, but extends to remote and unknown
persons.” Kahn v. James Burton Co., 5 Ill. 2d 614,
622, 126 N.E.2d 836 (1955).
The proper approach was well stated by Justice Linn
of the Illinois Appellate Court, concurring in Walton v.
Norphlett, 56 Ill. App. 3d 4, 371 N.E.2d 978, 13 Ill. Dec.
886, 890 (1977):
“It remains for the judiciary to abandon outmoded
theories of liabiiity and to bring the law into focus
with modern social mores and humanitarian values.
In the final analysis, the law, to remain an instru-
ment of justice, must be functional and responsive
to societal needs.”
In other types of cases, the Illinois Supreme Court has
wisely recognized this overriding policy. In Molitor v.
Kaneland Community Unit District No. 302, 18 Ill. 2d
11, 26, 163 N.E.2d 89, 96 (1959), the Court said:
—$2-—
“The doctrine of stare decisis is not an inflexible
rule requiring this court to blindly follow
precedents and adhere to prior decisions, and that
when it appears that public policy and social needs
require a departure from prior decisions, it is our
duty as a court of last resort to overrule those
decisions and establish a rule consonant with our
present-day concepts of right and justice.”
The Illinois Supreme Court has also taken that ap-
proach in many recent cases. Thus, in Darling v.
Charleston Community Hospital, 33 Ill. 2d 326, 211
N.E.2d 253 (1965), charitable immunity was abolished.
In Suvada v. White Motor Co., 32 Ill. 2d 612 (1965),
strict liability for damage as a result of defective
products was instituted.
More recently, that court said:
“Where this court has created a rule or doctrine
which, under present conditions, we consider un-
sound and unjust, we have not only the power but
the duty to modify or abolish it.” Skinner v. Reed-
Prentice Division Package Machinery Company, 70
Ill. 2d 1, 374 N.E.2d 4387, 15 Ill. Dec. 829, 834
(1978).
Despite the clear import of the holdings of numerous
cases, the Illinois Appellate and Supreme Courts have
refused to grant Petitioner the same rights granted to
others suffering actual and generally cognizable
damages. They have closed their doors. to litigants such
as Dr. Berlin who are damaged by the misuse and
perversion of the judicial process. The result of such
holding is to carve out an exception to the general rule
of liability guaranteed by the due process clause and the
equal protection clause. It grants immunity from suit to
a particular and favored class of citizens. It is of par-
ticular concern when the privileged class is made up of
attorneys-at-law.
—29—
An attorney has a unique position in the law. Only he
may represent others before the court. He has a duty,
therefore, not only to his clients, but to the judicial
system itself, to act properly in discharging that right
which carries with it heavy responsibility. It is not only
his reputation which he sullies when he needlessly in-
flicts harm upon others by knowing misuse of the
judicial system, but the reputation of the legal profes-
sion, as a whole. People, ex rel, Cutler v. Ford, 54 IIl.
520, 522 (1870). So apparent is this duty that the Code of
Professional Responsibility promulgated by the
American Bar Association specifically provides:
“A lawyer shall not file suit . . . when he knows or
when it is obvious that such actions would serve
merely to harass or maliciously injure another.”
D.R. 7-102(A\1).
“The duty of a lawyer to represent his client with
zeal does not militate against his concurrent obliga-
tion to treat with consideration all persons involved
in the legal process and to avoid the infliction of
needless harm.” E.C. 7-10
These statements of ethical concern must not be allow-
ed to become meaningless platitudes. It makes no sense
to say that an attorney may be disciplined by courts for
violating such ethical canons, but may not be held ac-
countable to the one whom his actions have clearly
harmed. Yet, this is what the courts of Illinois have
done. In refusing to take jurisdiction over this case and
hear the arguments of Petitioner, as mandated by its
own rules, the Illinois Constitution and the Supremacy
clause of the Constitution of the United States, the II-
linois Supreme Court has failed and twice declined to
recognize the important Federa! Constitutional issues
raised by this case. Only this Court is now available to
right that wrong.
—2—
CONCLUSION
For the foregoing reasons, Petitioner respectfully asks
this Honorable Court to grant its Writ directed to
Illinois Supreme Court (or, alternatively, to the Illinois
Appellate Court if deemed more appropriate), (a) noting
the emergence in the action and opinion of the Appellate
Court of substantial Federal Constitutional questions of
due process and equal protection, (b) directing the
Illinois Supreme Court to grant appeal and review as a
matter of right to determine in that Court whether
present Illinois law affords meaningful remedy con-
sistent with due process and equal protection to
Petitioner and all others similarly situated, and (c) for
such other relief and remedy in the premises as may be
available or required as a matter of constitutional right
or privilege.
Respectfully submitted,
Wayne B. Giampretro
134 N. LaSalle Street
Suite 1100
Chicago, Illinois 60602
(312) 236-0606
SamMueL W. Witwer
SaMuEL W. Witwer, JR.
125 S. Wacker Drive
Suite 2700
Chicago, Illinois 60606
(312) 332-6000
Attorneys for Petitioner
Of Counsel:
JoEL EnELMAN
DreJone, Pottrock & GIAMPIETRO
Wirwer, Moran, Burtace & ATKINSON
a a eee
ee rte es
wt Ar eee os
reve Alay ccsemtete 2c ala ae are eI ae
—
APPENDIX A
Opinion of the Appellate Court of Illinois, First District
Mr. Justice Ronit: delivered the opinion of the court:
This case involves another of the many retaliatory ac-
tions which physicians in Illinois and other states who have
been sued for malpractice are filing against both the orig-
inal plaintiff and the original attorney. In this case the
original plaintiff’s husband was sued as well. In accord
with the other cases in Illinois and elsewhere, we hold that
the complaint which failed to allege either malicious in-
tent or special damages failed to state a cause of action.
We also hold that the court correctly dismissed the phy-
sician’s claim against the husband for barratry.
The pleadings reveal that on October 1, 1973 Harriet
Nathan entered the Skokie Valley Community Hospital
complaining of an injury to the little finger of her right
hand. An x-ray was taken under the supervision of Dr.
Berlin, a radiologist on the staff of the hospital. Dr. Berlin
read the film as revealing a dislocation of the finger. Dr.
Meltzer then applied treatment appropriate for a disloca-
tion. In November, another x-ray was taken. This x-ray
disclosed that there had been a chip fracture of that finger.
On September 11, 1975, about two weeks before the stat-
ute of limitations would have run, Harriet Nathan, through
her attorneys, Benjamin and Shapiro, filed suit against
Dr. Berlin, Dr. Meltzer and the hospital alleging various
acts of malpractice in the taking of the x-rays and the
making of the diagnosis. Dr. Berlin thereupon filed a suit
iy
—Za—
(Appellate Court Opinion)
against Mr Nathan (at whose specific instance and re-
quest, he alleged, the malpractice suit was specifically
brought), Mrs. Nathan and her attorneys Benjamin and
Shapiro. In Count I of that suit he alleged that all four
defendants owed him a duty to refrain from willfully and
wantonly bringing suit against him without having reason-
able cause to believe that he had been guilty of malprac-
tice; that the defendants instead, although having no cause
whatsoever to believe he had been guilty of malpractice, had
instituted suit with reckless disregard as to the truth or
falsity of the allegations. Specifically, Dr. Berlin in Count
I complained that Benjamin and Shapiro had acted will-
fully and wantonly and without probable cause since they
had not, before filing suit, obtained an opinion from another
physician as to the quality of the x-rays and the correct-
ness of their interpretation thereof; and moreover, that the
ad damnum ($125,000), which bore no reasonable rela-
tionship to the injuries allegedly sustained, was devised to
intimidate Dr. Berlin and might affect his ability to pro-
eure malpractice insurance at reasonable rates. Dr. Berlin
in Count I specifically alleged that Harriet Nathan brought
suit willfully and wantonly and without probable cause
in that she at no time prior to suit obtained from another
physician an opinion as to the quality of the x-rays, the
correctness of their interpretation or an opinion whether
the condition of which she complained resulted from mal-
practice by either Dr. Berlin or Dr. Meltzer. Dr. Berlin
further alleged that the Nathans had been told by another
orthopedic surgeon, prior to the institution of the suit,
that no malpractice had occurred but that they willfully
and wantonly incited and instituted the suit in retribution
for real or imagined discourtesies to them by Dr. Meltzer.
a
(Appellate Court Opinion)
Finally, Dr. Berlin complained that as a result of these
actions his reputation in his profession had been attacked,
he had suffered mental anguish, he had been caused to de-
vote much time to the defense of the malpractice suit and,
that because of the institution of the suit, he would be re-
quired to pay increased premiums for his malpractice in-
surance coverage. In Count II, Dr. Berlin claimed that
Gilbert Nathan, knowing the malpractice suit to have no
merit but intending to extort money either from Dr. Berlin
or his malpractice insurance company, wickedly and will-
fully caused this suit to be brought and caused Harriet
Nathan to prosecute said suit, contrary to the Tlinois
barratry statute. Ill. Rev. Stat. 1975, ch. 13, par. 21.
In Count ITI, Dr. Berlin alleged that the attorneys, Ben-
jamin and Shapiro, had a duty to the plaintiff not to file
the malpractice lawsuit without reasonable evidence to sup-
port the allegations therein since, as attorneys, they were
particularly aware of the time and expense that litigation
causes and could foresee the harm an unfounded lawsuit
could cause to the reputation and mental well-being of a
physician; that by filing the complaint without reasonable
cause, the attorneys fell below the standard of care re-
quired of attorneys in the performance of their professional
duties in good faith and in a legal manner and were neg-
ligent towards Dr. Berlin.
Count II was dismissed by the trial court upon Gilbert
Nathan’s motion before trial. This suit was consolidated
with the original suit for discovery and for trial.
On May 27, 1976 the original malpractice suit was vol-
untarily dismissed, with prejudice, on the motion of Har-
riet Nathan. The action on the countersuit then proceeded
—
(Appellate Court Opinion)
to trial. At the close of the trial the jury was not instructed
as to the elements involved in a suit for malicious prosecu-
tion but were solely instructed as follows: as to Count I
that the plaintiff claimed that the conduct of the defend-
ants was willful and wanton in that a medical malpractice
complaint was filed against him when there was no rea-
sonable cause to believe that such a cause of action existed
and that the defendant’s act was a proximate cause of his
damages (all of which the defendants denied) ; as to Count
II (originally Count II) that the plaintiff claimed that
he sustained damages while exercising ordinary care and
the defendants Benjamin and Shapiro were negligent in
filing and prosecuting a lawsuit without taking proper steps
to determine that there was reasonable cause to believe
any cause of action existed and that this was a proximate
cause of his damage (all ot which the defendants denied).
The jury was also instructed that in filing a lawsuit an
attorney must possess and apply the knowledge, skill, care
and regard for potential defendants that is ordinarily used
and shown by reasonably well-qualified attorneys in the lo-
eality. And finally, the jury was instructed that the de.
fendants had a duty before and at the time of the occur-
rence to refrain from willful and wanton conduct which
would endanger the rights of the plaintiff.
The jury found all four defendants guilty of willful and
wanton misconduct proximately causing injury to Dr. Ber-
lin and awarded Dr. Berlin $2,000 in compensatory dam-
ages and $6,000 in punitive damages.
All the parties have appealed.
—
(Appellate Court Opinion)
I.
The amicus curiae has argued that the jury verdict should
be upheld since the jury properly found defendant guilty
of malicious prosecution. We disagree since we find that
the plaintiff’s complaint was not sufficient to state a claim
for malicious prosecution against any of the defendants,
and the instructions to the jury certainly did not submit a
claim for malicious prosecution.
A.
Tort litigants, such as the Nathans, may be held liable
for malicious prosecution. (25 Illinois Law and Practice
Malicious Prosecution §§ 1 et seq. (1956).) However, since
the law does not look with favor on such suits (Schwartz
v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Carlyle v.
Carlyle (1960), 28 Ill. App. 2d 90, 170 N.E.2d 790; Lyddon
v. Shaw (1978), 56 Ill. App. 3d 815, 14 Tll. Dee. 489, 372 N.E.
2d 685), there are strict limitations on the availability of
such suits. Suits for malicious prosecution cannot be main-
tained in Illinois unless the plaintiff alleges and proves that
the plaintiff in the original tort action acted maliciously
and without probable cause (Hill Co. v. Contractors’ Sup-
ply Co. (1911), 249 Til. 304, 94 N.E. 544; Lyddon v. Shaw
(1978), 56 Ill. App. 3d 815, 14 Ill. Dee. 489, 372 N.E.2d 685) ;
that the prior cause terminated in the plaintiff’s favor
(Schwartz v. Schwartz (1937), 366 Tl. 247, 8 N.E.2d 668;
Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 14 Tl. Dee. 489,
372 N.E.2d 685); and that some special injury not neces-
sarily resulting in any and all suits prosecuted to re-
cover for like causes of action was suffered. (Schwartz
v. Schwartz (1937), 366 Tl. 247, 8 N.E.2d 668; Lyddon v.
Shaw (1978), 56 Tll. App. 3d 815, 14 Ill. Dee. 489, 372 N.E.
=
(Appellate Court Opinion)
2d 685; Pantone v. Demos (1978), 59 Ill. App. 3d 328,
16 Ill. Dee. 607, 375 N.E.2d, 480.) It is clear that in this
ease neither of the last two elements was pleaded and,
even if we liberally construe ihe complaint to allege that
the suit was brought maliciously and without probable cause
by the Nathans, that issue was not submitted to the jury.
B.
Special damages as defined by the Illinois Supreme Court
in Schwartz v. Schwartz are those not necessarily resulting
in any and all suits prosecuted to recover for like causes
of action. The only damages that Dr. Berlin claimed he
suffered are (1) his reputation in his profession has been
attacked; (2) he has suffered mental anguish; (3) he has
been forced to spend time on the defense; (4) he will be
required to pay increased insurance premiums. The first
three items of damage claimed are so patently common to
all litigation that no discussion is warranted. We agree,
moreover, with the Illinois court in Pantone that an increase
in insurance premiums, while perhaps not a necessary re-
sult of the litigation, is, assuming the allegation is anything
more than pure speculation, an item necessarily incident to
all malpractice cases and not therefore amounting to dam-
ages suffered specially by Dr. Berlin as distinct from other
physicians who have been defendants in malpractice suits.
The defendant and amicus curiae both, however, contend
that the requirement of special damages is unreasonable
and should be abolished. First of all, we have no authority
to overrule the Illinois Supreme Court. (Chicago Title &
Trust Co. v. Guarantee Bank (1978), 59 Ill. App. 3d 362,
16 Ill. Dee. 649, 375 N.E.2d 522.) But in any event, we
agree with O’Toole v. Franklin (1977), 279 Or, 513, 569 P.
Mee
—
(Appellate Court Opinion)
2d 561 and Ammerman v. Newman (D.C. 1978), 384 A.2d
637 which rejected precisely the same argument. As the
latter court stated at 384 A.2d 641:
‘*Appellant effectively concedes that he has suffered
no injury that would not normally occur as a conse-
quence of a malpractice suit, and appears to recognize
that the authority in this jurisdiction does not support
his claim. He seeks to avoid the application of the rule
by arguing that it is inequitable in the context of medi-
eal malpractice actions. He contends that the fact that
such actions are particularly harmful to the reputa-
tions and livelihood of physicians calls for a modifica-
tion of the rule with respect to them. The purpose of
the special injury rule, however, is to strike a balance
between allowing free access to the courts for the vindi-
cation of rights without fear of a resulting suit, and
the undue exercise of such right. Davis v. Boyle Bros.,
D.C. Mun. App., 73 A.2d 517, 521 (1950). Appellant’s
argument, if accepted, would upset that delicate bal-
ance. The nature of his profession, given its profound
impact on the lives of those with whom he deals, can-
not be allowed to insulate him from potential liability.
In order to maintain a free access to the courts by per-
sons with grievances who might otherwise be restrained
from seeking redress because of their fear of liability
should they fail, the special injury rule has consistently
been upheld.
The limitation is sound. When disputes reach the liti-
gious stage, usually some malice is present on both
sides. Friendly tort suits are not common. Nor is
existence or want of probable cause always easy to
determine until the event of the litigation is known.
Some margin of safety in asserting rights, though they
turn out to be groundless and their assertion accom-
panied by some degree of ill-will, must be maintained.
—
(Appellate Court Opinion)
Otherwise litigation would lead, not to an end of dis-
puting, but to its beginning, and rights violated would
go unredressed for fear of the danger of asserting them.
| Melvin v. Pence, 76 U.S. App. D.C. 154, 157, 130 F.2d
423, 426 (1942).]”’
C.
The complaint against the Nathans failed to allege that
the malpractice action had been terminated in plaintiff’s
favor, obviously for the simple reason that it had not been
terminated when the complaint was filed, although it was
terminated before the counterclaim was actually tried. Nev-
ertheless, if we were to permit such an action under these
circumstances, we would create the incongruous situation
of permitting the filing of a suit before the cause of action
existed or the statute of limitations commenced to run.
Babb v. Superior Court (1971), 3 Cal.-3d 841, 92 Cal. Rptr.
179, 479 P.2d 379.
D.
Basically, the complaint against the Nathans merely al-
leges that their conduct was willful and wanton. Willful
and wanton conduct does not amount to malice. (Compare
Myers v. Krajeska (1956), 8 Til. 2d 322, 134 N.E. 277.)
However, a suit brought for an improper motive may be
malicious (Carlyle v. Carlyle (1960), 28 Ill. App. 2d 90, 170
N.EF.2d 790), and Dr. Berlin did allege that the Nathans
brought suit solely in retribution for the real or imagined
. discourtesies of Dr. Meltzer. But, the plaintiff clearly aban-
doned any attempt at trial to prove a cause of action against
the Nathans for malicious prosecution since in the instrue-
tions submitted to the jury, the jury was solely instructed
as to willful and wanton misconduct and was not instructed
as to the elements of a claim for malicious proseeution. The
a
(Appellate Court Opinion)
burden was on the plaintiff to submit the iseue (35 Ilinois
Law and Practice T'rial §251 (1958)); having failed to do
80 he cannot contend on appem that he had a elaim for
malicious prosecution. And, in all fairness to the plaintiff,
he has not made such a claim; only amicus curiae has done
80.
K.
A suit for malicious prosecution can be brought against
an attorney since an attorney cannot always justify him-
self merely by showing he followed his client’s instructions.
(Burnap v. Marsh (1852), 13 Dll. 535.) If an attorney, ae
knowledging there is no cause of action, and knowing this
dishonestly and for some improper purpose files suit, or
even if an attorney merely acts knowing that his client has
no just claim and that his client is actuated by illegal or
malicious motives, the attorney may be held liable for
malicious prosecution. Burnap v. Marsh (1852), 13 Ill. 526;
Annot., 27 A.L.R.3d 1113 at 1129-1133 (1969).
However the plaintiff’s complaint was totally insuffi-
cient to support a claim against the attorneys for malicious
prosecution. First, there is no allegation that the attorneys
acted maliciously or knew that their client did so. As we
noted previously, willful and wanton conduct does not con-
stitute malicious conduct, particularly where, as here, no
improper motive of any kind on the part of the attorneys
is suggested. Basically, the plaintiff simply complains that
the defendants did not get another doctor’s opinion before
filing suit. But the undisputed facts are that the finger
was fractured and that this fracture was not discovered
for several weeks. Perhaps more investigation before filing
suit would have been prudent, but as the Louisiana court
—10a—
(Appellate Court Opinion)
remarked in Spencer v. Burglass (Ct. of App. 1976), 337
So.2d 596 at 599, 600:
‘‘There are no factual allegations to suggest that when
defendant filed his client’s suit he knew the allegations
were false or that he had a reckless disregard as to
whether the allegations were false or not. On the con-
trary, piaintiff’s allegations are to the effect that de-
fendant simply did not know enough about the case at
the time he filed it and now in retrospect plaintiff would
say this was malice on defendant’s part. If that be so
many a successful lawsuit would never have been or
never would be filed because oftentimes the case comes
to the attorney just prior to prescription date and the
evidence is not discovered and developed until after
the suit is filed. We therefore conclude that the allega-
tion of ‘frivolously filing suits’ cannot be construed
as an allegation of malice.
Finally, there is the allegation that defendant failed
to obtain ‘competent medical advice,’ ete. Does this
constitute an allegation of malice? It would seem that
an affirmative answer to this query would mean that
before the attorney brings a malpractice case to trial
he must find a medical person who supports ve attor-
ney’s theory or that of his client, who is willing to
testify favorably and who is ‘competent’ by someone’s
(plaintiff’s?) standards. If he finds no such person
but he nevertheless, places whatever evidence he can
before the court perhaps relying on circumstantial evi-
dence, reasonable inferences and common sense and
perhaps realizing that he will probably lose, he runs
the risk of having his conduct branded as malicious.
When the bald allegation in question is considered in
this light it can hardly be construed as one alleging
malice. At worst, the allegation is that defendant went
to trial with a poor case and got his just desserts, to
—lla—
(Appellate Court Opinion)
wit, he lost. If that constitutes maiice, the courtrooms
are full of malicious attorneys. This we cannot accept.’’
Furthermore, as we discussed earlier, the complaint was
insufficient since no special damages were alleged. And
finally, there is no allegation that the malpractice case was
terminated favorably to the present plaintiff before the
complaint was filed. In fact it is conceded that at the time
of filing, the original tort action was still pending. As the
court observed in Lyddon v. Shaw (1978), 56 Ill. App. 3d
815, 820, 14 Ill. Dee. 489, 492, 372 N.E.2d 685, 688, to per-
mit the filing of such an action against the attorney prior
to the termination of the initial malpractice action ‘‘ would
tend to drive a wedge between the malpractice plaintiff
and his attorney; the attorney may be diverted from prop-
erly preparing the client’s malpractice case by the neces-
sity for readying his own defense to the physician’s coun-
tersuit, and may, in some cases, even be forced to with-
draw from the malpractice action.’’ This we cannot permit.
II.
It is clear, therefore, that Dr. Berlin’s complaint is in-
sufficient to allege a cause of action for malicious prosecu-
tion. Indeed, he has not on appeal contended that it is. What
he does claim, contrary to the well-established law in Illi-
nois that ‘‘a person is not liable for bringing any suit,
criminal or civil, * * *, if the court had jurisdiction of the
subject matter and the parties, unless he acts maliciously
and without probable cause’’ (Hill Co. v. Contractors’ Sup-
ply Co. (1911), 249 Til. 304, at 310, 94 N.E. 544, at 546), is
that he should be able to recover against all of the defend-
ants for the willful and wanton filing of a frivolous lawsuit.
But Hill still represents the state of the law in Illinois
—1l2a—
(Appellate Court Opinion)
(Pantone v. Demos (1978), 59 Tl. App. 3d 328, 16 Ill. Dee.
607, 375 N.E.2d 480.) Furthermore, since ‘‘it takes a ‘special
injury’ to recover for the malicious pursuit of an unfounded
civil action, it would be incongruous to base a recovery on
mere carelessness without the same requirement.”’ (O’Toole
v. Franklin (1977), 279 Or. 513, 569 P.2d 561, at 566.)
Likewise, we agree with the court in Lyddon v. Shaw
(1978), 56 Ill. App. 3d 815, 14 Tl. Dee. 489, 372 N.E.2d
685 that the failure to plead the outcome of the malprac-
tice action would constitute a fatal defect to Dr. Berlin’s
complaint, even if he were correct in his contention that
malicious prosecution is not the sole course of action avail-
able to a party who is put to the expense and vexation of
defending a baseless lawsuit. The considerations under-
lying the requirement that a complaint for malicious pros-
ecution plead the favorable outcome of the prior cause are,
in effect, broader than the rule itself. Indeed, we hold that
permitting the filing of such a complaint against the at-
torney before the termination of the original suit would
be against public policy since it would tend, as we pointed
out earlier, to create a conflict of interest between attorney
and client.
A.
Dr. Berlin, however, contends that Article I, Section 12
of the Illinois Constitution requires the creation of a new
cause o¢ action. Section 12 reads as follows:
‘*E very person shall find a certain remedy in the laws
for all injuries and wrongs which he receives to his per-
son, privacy, property or reputation. He shall obtain
justice by law, freely, completely, and promptly.’’
It is well established in Dlinois that Section 12, like its
predecessor Section 19 of Article II of the 1870 Illinois
ll
iii:
(Appellate Court Opinion)
Constitution,’ is ‘‘an expression of a philosophy and not
a mandate that a ‘certain remedy’ be provided in any spe-
cific form or that the nature of the proof necessary to the
award of a judgment or decree continue without modifica-
tion.’’ (Sullivan v. Midlothian Park District (1972), 51 Il.
2d 274, at 277, 281 N.E.2d 659 at 662.) So long as some
remedy for the alleged wrong exists, Section 12 does not
mandate recognition of any new remedy. (Pantone v. Demos
(1978), 59 Ill. App. 3d 328, 16 Ill. Dee. 607, 375 N.E.2d
480.) As recognized by the court in Lyddon v. Shaw (1978),
56 Ill. App. 3d 815, 14 Ill. Dee. 489, 372 N.E.2d 685, in this
type of case one may file an action for malicious prosecu-
tion, or perhaps for abuse of process, and even if those
two remedies are not applicable, he may, if put to the bur-
den of defending allegations made without reasonable cause,
recover attorney’s fees under section 41 of the Civil Prac-
tice Act (Ill. Rev. Stat. 1977, ch. 110, par. 41), by motion in
the original action. He may also, though we doubt it is
much comfort to the plaintiff, in an appropriate case, be
instrumental in the institution of disciplinary proceedings
against the offending attorney. Section 12 mandates no ad-
ditional remedies. (Pantone v. Demos (1978), 59 Il]. App.
3d 328, 16 Ill. Dee. 607, 375 N.E.2d 480.) The mere fact
that the relief provided by these remedies is limited (Cun-
ningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153),
or that the plaintiff is unable to meet the burden of proof
required does not dictate the creation of new remedies.
1 Section 12 made two changes. One was to add protection against
invasion of privacy. The other was the substitution of the word
‘‘shall’’ for the words ‘‘ought to.’’ However it is clear from the
legislative history that the latter change was not ‘“‘to create ary
new rights or to limit any rights.’’ 3 Record of Proceedings, Sixth
Illinois Constitutional Convention 1491.
—l4a—
(Appellate Court Opinion)
The failure to state a cause of action cannot be cured by
alleging that the plaintiff should have a remedy as pro-
vided in Section 12. Constitutional rights are not infringed
where an insufficient complaint is dismissed. (Belmar Drive-
In Theatre vy. Illinois State Toll Highway Commission
(1966), 34 Ill. 2d 544, 216 N.E.2d 788; Zamouski v. Ger-
rard (1971), 1 Tl!. App. 3d 890, 275 N.E.2d 429.) And as
observed in O’Toole v. Franklin (1977), 279 Or. 513, 569 P.
2d 561 at 565 ‘‘it would be ironic to derive a looser test
of malicious prosecution from a constitutional guarantee
of access to the courts.’’
B.
We are not persuaded by the plaintiff’s argument that
in light of the recent rise in the volume of malpractice
litigation, including the filing of frivolous malpractice suits
purely for their settlement value, public policv demands
the creation of a cause of action to protect the courts from
their misuse and the physician from the resulting harm.
First of all, we agree with the court in Pantone v. Demos
(1978), 59 Ill. App. 3d 328, 16 Tl. Dee. 607, 375 N.E.2d .480
that it is doubtful that the creation of this new remedy
would reduce the amount of litigation; it is far more likely
that litigation would be increased since each successful de-
fendant would bring suit against the original plaintiff.
(See also Smith v. Michigan Buggy Co. (1898), 175 Ill.
619, 51 N.E. 569.) But even if the creation of this new rem-
edy would reduce congestion in the courts, the price the
public would have to pay for the benefit is too great. It is
the overriding public policy of Illinois that potential suitors
must have free and unfettered access to the courts. (Pan-
tone v. Demos (1978), 59 Til. App. 3d 328, 16 Tl. Dee. 607,
tll
Mit re
—lia—
(Appellate Court Opinion)
375 N.E.2d 480; Lyddon v. Shaw (1978), 56 Ill. App. 3d
815, 14 Ill. Dee. 489, 372 N.E. 2d 685.) The Illinois courts
have consistently adhered to the established policy ‘‘that
the courts should be open to litigants for settlement of their
rights without fear of prosecution for calling upon the
courts to determine such rights’’ (Franklin v. Grossinger
Motors Sales, Inc. (1970), 122 Tl. App. 2d 391, at 396,
259 N.E.2d 307, at 309, leave to appeal denied, cert. denied,
403 U.S. 911 (1971)), and have never deviated from the
philosophy expressed in Smith v. Michigan Buggy Co.
(1898), 175 Tl. 619 at 628, 51 N.E. 569, at 571 that:
‘*{T]t must be remembered that the courts are open
to every citizen, and every man has a right to come
into a court of justice and claim what he deems to be
his right without fear of being prosecuted for heavy
damages. If such actions are allowed, it might often-
times happen that an honest suitor would be deterred
from ascertaining his legal rights through fear of being
obliged to defend a subsequent suit, charging him with
malicious prosecution.’’
Thus, our courts have consistently applied, and refused
to lessen, the elements necessary in proving a case for mali-
cious prosecution. See Schwartz v. Schwartz (1937), 366 Ill.
247, 8 N.E.2d 668; Smith v. Michigan Buggy Co. (1898),
175 Tl. 619, 51 N.E. 569; Lyddon v. Shaw (1978), 56 Ill.
App. 3d 815, 14 Ill. Dee. 489, 372 N.E.2d 685; Pantone v.
Demos (1978), 59 Ill. App. 3d 328, 16 Ill. Dee. 607, 375 N.E.
2d 480; Westphal v. Fridly (1975), 34 Ill. App. 3d 611, 339
N.E.2d 30; Frankiin v. Grossinger Motor Sales, Inc. (1970),
122 Til. App. 2d 391, 259 N.E.2d 307, leave to appeal denied,
cert. denied, 403 U.S. 911; Caspers v. Chicago Real Estate
Board (1965), 58 Ill. App. 2d 113, 206 N.E.2d 787.
_—
(Appellate Court Opinion)
While it is true that, as the defendant contends, ‘‘no man’
has a constitutional right to maintain vexatious or harassing
litigation,’’ (Guttman v. Guttman (1969), 65 Ill.App.2d 44,
at 53, 212 N.E.2d 699, at 704), nevertheless ‘‘[s]ome sort
of balance has to be struck between the social interests
in preventing unconscionable suits and in permitting hon-
est assertion of supposed rights. These interests conflict
because a suit which its author thinks honest may look
unconscionable to a jury.’’ Soffos v. Eaton (1945), 80 U.S.
App. D.C. 306, at 307, 1% F.2d 682 at 683; O’Toole v.
Franklin (1977), 279 O|. °.3, 569 P.2d 561 at 564. Since,
as the court in Lydd » ented out, the very purpose of
a court of law is to dew ine whether an action filed by
a party has merit, it would be incongruous to hold a party
liable in tort for negligently or even wantonly failing to
determine in advance that which ultimately only the court
can determine.
And as pointed out in Lyddon v. Shaw at 56 Il. App. 3d
822, 14 Ill. Dee. 494, 372 N.E.2d 690:
‘*These considerations apply with equal force, not only
to a party litigant, but to his counsel, (see Spencer v.
Burglass (1976), La. App., 337 S.2d 596), since a liti-
gant’s free access to the courts would frequently be of
little value to him if he were denied counsei of his
choice by a rule which rendered attorneys fearful of
being held liable as insurers of the merits of their
elient’s case, and therefore unwilling to undertake rep-
resentation in close or difficult matters.”’
See also Norton v. Hines (1975), 49 Cal. App. 3d 917, 123
Cal. Rptr. 237.
—l17a—
(Appellate Court Opinion)
Indeed, we believe it would be contrary to public policy
for us to hold that an attorney has a duty to an intended
defendant not to file a weak or perhaps ‘‘frivolous’’ law-
suit since we would be creating an insurmountable conflict
of interest between the attorney and the client. The at-
torney owes a duty to his or her client to present the client’s
case vigorously in a manner as favorable to the client as
the rules of law and professional ethics demand. (Norton
v. Hines (1975), 49 Cal. App. 3d 917, 123 Cal. Rptr. 237.)
When a tort action is brought he has but one intended bene-
ficiary, his client; the adverse party is certainly not an in-
tended beneficiary of the adverse counsel’s client. Thus,
even in states extending the attorney’s responsibility and
liability to intended beneficiaries of the client’s conduct,
such as intended legatees under a will, no liability to the
adverse party sued by the client has been found absent
malicious prosecution. Norton v. Hines (1975), 41 Cal. App.
3d 917, 123 Cal. Rptr. 237.
C.
Furthermore, we are not convinced by Dr. Berlin’s ar-
gument that since the defendant attorneys are officers of
the court and can be disciplined by the court, they should
be held liable in tort for breach of Disciplinary Rule 7-102
and Ethical Consideration 7-10 of the Illinois Code of Pro-
fessional Responsibility (1970). First of all, the Code is
not ‘‘designed solely to prevent the risk of the plaintiff’s
being piqued at being sued. That would be an oversimplifi-
cation of the ethical complexities which govern the lawyer’s
conduct to his client, the court and the public.’’ (Spencer
v. Burglass (La. App. 1976), 337 So.2d 596 at 601.) Sec-
—18a—
(Appellate Court Opinion)
ondly, we see no violation of the Code. The provisions
relied on by Dr. Berlin read as follows:
Illinois Code of Professional Responsibility,
D.R. 7-102(A)(1) (1970) :
‘*... @ lawyer shall not: (1) File a suit * * * when he
knows or when it is obvious that such action would
serve merely to harass or maliciously injure another.’’
Illinois Code of Professional Responsibility,
E.C. 7-10 (1970) :
‘The duty of a lawyer to represent his client with zeal
does not militate against his concurrent obligation to
treat with consideration all persons involved in the
legal process and to avoid the infliction of needless
harm.’’
As we have already noted, plaintiff in his complaint at no
time alleged that the defendant attorneys filed the action
knowing it would serve merely to harass or maliciously in-
jure another. All he alleged was that they failed to make
the investigation he, Dr. Berlin, felt was proper instead
of relying on their client’s statement. But, to reiterate, ‘‘if
that constitutes malice, the courtrooms are full of malicious
attorneys.’’ (Spencer v. Burglass (La. App. 1976), 337 So.
2d 596 at 600.) And the injunction to avoid infliction of
needless harm can hardly be interpreted as an injunction
against the filing of weak lawsuits. The attorney is liable if
he is guilty of malicious prosecution, that is enough. To
create liability only for negligence, for the bringing of a
weak case, would be to destroy his efficacy as advocate of
his client and his value to the court, since only the rare at-
torney would have the courage to take other than an ‘‘easy”’
case.
2 Caan
anit
(Appellate Court Opinion)
D.
We are aware that, as Dr. Berlin contends, some doctors
are being flooded with lawsuits; that all at least suffer the
loss of time, fees, and the possibility of an increase in in-
surance premiums, or even the cancellation of their mal-
practice policies. We are aiso aware that the cost of the
litigation can be great, whether borne by the doctor him-
self or by his insurance company. As to this latter problem,
we note that the legislature has already responded, to a
certain extent, since in 1976 it amended section 41 of the
Illinois Civil Practice Act, which subjects a party plead-
ing false allegations to the payment of attorney’s fees, by
eliminating the former requirement that the allegations
be shown to have been made in bad faith, and substituting
a requirement for a lesser showing that the allegations
were made ‘‘without reasonable cause.’’ (Ill. Rev. Stat.
1977, ch. 110, par. 41; see Lyddon v. Shaw (1978), 56 Ml.
App. 3d 815, 14 Ill. Dee. 489, 372 N.E.2d 685.) While we
can sympathize with the physician’s predicament, as with
that of any person who, confronted with an unwarranted
and unfounded lawsuit, must still expend time, money and
suffer anxiety, nevertheless we feel, as have the other courts
which have considered the problem (see Annot. 84 A.L.R.
3d 555, et seq.2), that this, unfortunately, is a price which
must necessarily be paid to keep the courts open to the
2 The plaintiff has cited no case where an appellate court has
upheld a complaint brought by a treating physician against his
former patient or if deceased, the patient’s family or the patient's
attorneys for the bringing of a tort action against the physician
where malicious prosecution has not been shown and this court
has found none. Drago v. Bounagurio (1978), 61 A.D. 2d 282, 402
N.Y.S. 2d 250 cited by the plaintiff is not in point. In that case,
(footnote continued on following page)
——_
(Appellate Court Opinion)
people. It remains a valid truism that ‘‘[s]uch ordinary
trouble and expense as arise from the ordinary forms of
legal controversy should be endured by the law-abiding citi-
zen as one of the inevitable burdens which men must sustain
under civil government.’’ (Smith v. Michigan Buggy Co.
(1898), 175 Ill. 619, at 629, 51 N.E. 569, at 572.) The im-
portance of free access to the courts demands that this
access be maintained even though occasionally some inno-
cent person must suffer.
Ii.
While we agree with Mr. Nathan that the claim against
him must be dismissed for the same reason it must be dis-
missed as to the other three defendants, we cannot agree
with his contention that he also cannot be held liable be-
cause he is not responsible for his wife’s conduct. While
the Married Women’s Act makes it clear that damages for
a civil injury committed by a married woman may be re-
covered from her alone (Ill. Rev. Stat. 1975, ch. 68, par. 4),
it does not follow that a husband and wife cannot conspire
together to commit a tort or jointly commit a tort. 21 Tli-
nois Law and Practice, Husband & Wife §210.
IV.
Dr. Berlin has cross-appealed from the dismissal of Count
II against Mr. Nathan for barratry. We agree with Dr.
Berlin that under certain circumstances an action in tort
might lie against a common barrator. After all, it is clear
the court upheld a complaint by a physician who allegedly had
never treated the deceased directly or indirectly during the fatal
illness and who had been sued as a discovery device in order to
ascertain where responsibility could be placed. No such flagrant
and deliberate abuse of the legal system has been alleged here.
—
a ls
—Zla—
(Appellate Court Opinion)
that at common law an action in tort could be brought
against one guilty of maintenance (see for example Fletcher
v. Ellis (Territory of Ark. 1836), 9 F. Cas. 266 (No. 4,863a) ;
Goodyear v. Dental Vulcanite Co. v. White (C.C. S.D.N.Y.
1879), 10 F. Cas. 752 (No. 5,602)), and we see no reason
why the same rules should not apply to common barratry.
But we agree with the trial court that no action for com-
mon barratry could lie under the situation present in the
instant case.
At common law, barratry or common barratry was de-
fined as the offense of frequently exciting or stirring up
suits and quarrels between others. Barratry did not con-
sist of a single act but of several acts, and it has been
stated that at common law at least three acts of a bar-
ratrous nature were necessary to commit the offense. (Lyd-
don v. Shaw (1978), 56 Ill. App. 3d 823, 14 Ill. Dee. 489,
372 N.E.2d 685; State v. Noell (1927), 220 Mo. App. 883,
295 S.W. 529; 14 Am. Jur. 2d Champerty and Maintenance
§19.) It is the general practice and not the particular act
which constitutes the crime of common barratry. (Com-
monwealth v. Pray (1832), 30 Mass. (13 Pick) 359.) Here
even if the conduct of Mr. Nathan could be considered to
constitute the stirring up of a single suit or quarrel, it
alone was insufficient to constitute common barratry.
Furthermore, as pointed out in Vitaphone Corporation v.
Hutchinson Amusement Co. (D. Mass. 1939), 28 F. Supp.
526 at 530:
«<* * * Blackstone described a barrator in volume 4, p.
125, as ‘those pests of civil society that are perpetually
endeavoring to disturb the repose of their neighbors
and are officiously interfering in other men’s quarrels.
-—22a—
(Appellate Court Opinion)
** *’ Assuming barratry still to be an offense in Maine
and Massachusetts, where the activities complained of
here took place, it would be difficult to suppose that the
vexatious person or collection of persons that are called
common barrators can be found to exist under the above
described circumstances. There was no purpose on the
part of either the distributors or the Bureau to foment
suits in order to oppress persons. Commonwealth v.
McCulloch, 15 Mass. 227. And, surely, the definition
in Blackstone cannot fit persons engaged in protecting
their legitimate business enterprises.”’’
We do not believe that this definition can apply to a person
trying to protect his legitimate domestic enterprise, that
is, his family, any more than it can to one protecting a
legitimate business enterprise. Compare also Milk Dealers
Bottle Exchange v. Schaffer (1922), 224 Ill. App. 411.
Dr. Berlin, however, argues that the codification of the
offense into statutory form has abolished the common law
offense. Ill. Rev. Stat. 1975, ch. 13, par. 21 reads as follows:
‘Tf any person shall wickedly and wilfully excite and
stir up any suits or quarrels between the people of this
state, either at law or otherwise, with a view to pro-
mote strife and contention, he shall be deemed guilty
of the petty offense of common barratry; and if he be
an attorney or counselor at law, he shall be suspended
from the practice of his profession, for any time not
exceeding six months.”’
Even if we were to agree with the plaintiff that the statute
has abolished the common law offense, an issue we do not
rule on, we cannot agree with the plaintiff that a single
action runs afoul of the statute. If a statute is enacted
which covers an area formerly covered by common law, such
statute must be construed as adopting common law unless
—23a—
(Appellate Court Opinion)
there is clear and specific language showing that change in
the common law was intended by the legislature. (Proud v.
W.S. Bills & Sons, Inc. (1970), 119 Til. App. 2d 33, 255 N.E.
2d 64, leave to appeal denied.) There is no clear and
specific language in the statute indicating that it was in-
tended to be more restrictive than common law. While the
statute does refer to any suits or quarrels, we do not be-
lieve that the word ‘‘any’’ clearly indicates that the stir-
ring up of a single suit or quarrel is sufficient since the
statute refers to suits or quarrels in the plural. It is still
the law in Dlinois that the laws against champerty, main-
tenance and barratry are aimed at the prevention of mul-
titudinous and useless lawsuits and at the prevention of
speculation in lawsuits. Milk Dealers Bottle Exchange v.
Schaffer (1922), 224 Tl. App. 411.
Furthermore, we note that the trend in the law has not
been toward a more rigorous application of the laws against
barratry, champerty and maintenance, but the converse. As
the court in Milk Dealers Bottle Exchange v. Schaffer
(1922), 224 Ill. App. 411 pointed out at p. 415:
‘‘While the common-law crime of champerty has not
been abolished by statute in this State, the tendency of
decisions is to depart from the severity of the old law
and at the same time to preserve the principle which
tends to defeat the mischief to which the old law was
directed, namely, ‘the traffic of merchandizing in quar-
rels, of huckstering in litigious discord.’ ”’
Additionally, it is noted in 14 Am. Jur. 2d Champerty and
Maintenance, §1, p. 842:
‘‘The doctrines of champerty and maintenance, as
known to the common law, arose at an early day in
England from causes peculiar to the state of society
24g
(Appellate Court Opinion)
then existing. Out of the conditions then existing arose
the common law rule which prohibited the assignment
of choses in action and the sale and transfer of land
held adversely. The progress of law, enlightenment,
and civilization during the past few hundred years
has, however, to a large extent obviated the necessity
of the stringent rules. In none of the states are the
doctrines of laws or champerty and maintenance pre-
served in their original rigor. In many states they are
declared to be obsolete and to have no existence at all;
in others they are preserved in a greatly modified
form, usually by special statutes. Generally, choses
of action are now assignable, and land held adversely
may be sold and transferred. Considering the status
of society and conditions now prevailing in this coun-
try, to transfer a right of action or to inaintain the
suit of another without having any direct or contingent
interest in it will by no means necessarily produce mis-
chief or oppression. Indeed, it may be that such as-
sistance or maintenance will have a tendency to secure
rights and promote the ends of justice.”’
Indeed, we doubt the constitutionality of any statute
which could be considered to bar the giving of unsolicited
advice by one person to another, without charge, that that
person may have a remedy at law and should peruse it,
where the first person is not, as was the case in Ohralik v.
Ohio State Bar Assn. (1978), ...... US. ......, 56 L. Ed.2d 444,
98 S. Ct. 1912, attempting to obtain remunerative employ-
ment for himself as legal counsel. As Mr. Justice Marshall
remarked in his concurring opinion in that case, at ......
USS. ......, 56 L. Ed.2d 464, 98 S. Ct. at 1928:
‘‘The provision of such information about legal rights
and remedies is an important function, even where the
rights and remedies are of a private and commercial
nature involving no constitutional or political over-
—25a—
(Appellate Court Opinion)
tones. See United Mine Workers v. Illinois State Bar
Association, 389 U.S. 217, 221-223 (1967). See also
United Transportation Union vy. State Bar of Michigan,
401 U.S. 576, 585 (1971).’’
And as was pointed out in In re Primus (1978), ...... 8 Sane
56 L. Ed.2d 417, at 434, 98 S. Ct. 1893, at 1904, 1905:
‘‘The First and Fourteenth Amendments require a
measure of protection for ‘advocating lawful means
of vindicating legal rights.’ Button, 371 U.S. at 437,
including ‘advis[ing] another that his legal rights have
been infringed and refer[ring] him to a particular at-
torney or group of attorneys * * ° for assistance,’ ’’
id., at 434.
While it is true that both Primus and NAACP v. Button
(1963), 371 U.S. 415, 9 L. Ed.2d 405, 83 S. Ct. 328 were
cases involving ‘‘constitutional and political overtones’’ and
that the court in both distinguished the cases involving
private litigation for private gain, serving no public inter-
est, we suspect that the providing of information about legal
rights may be on occasion constitutionally protected even
where merely private and commercial rights are involved.
However, that question is not before us in this case, since,
while the defendant, Mr. Nathan, raised the issue in his
answer, he has waived it by not raising it on appeal. Berk
v. Will County (1966), 34 Tl. 2d 588, 218 N.E.2d 98; Il.
Rev. Stat. 1977, ch. 110A, par. 341(e) (7).
—26a—
(Appellate Court Opinion)
For the reasons previously discussed in this opinion, the
jadgment of the trial court in favor of Dr. Berlin is re-
versed and the case is remanded for the entry of an order
dismissing the plaintiff’s complaint. The judgment on the
cross-appeal is affirmed.
REVERSED IN PART AND REMANDED.
AFFIRMED IN PART.
Jounson, P.J. and Drmerreer, J., concur.
—27a—
APPENDIX B
ILLINOIS SUPREME COURT
CLELL L. WOODS, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILL. 62706
January 25, 1979
Mr. Wayne B. Giampietro
Attorney at Law
Lightenberg, DeJong, Poltrock
& Giampietro
134 North LaSalle Street
Suite 1100
Chicago, IL 60602
No. 51367—Leonard Berlin, petitioner, vs. Gilbert Nathan,
et al., respondents. Leave to appeal, Appellate
Court, First District.
The Supreme Court today denied the petition for leave
to appeal in the above entitled cause.
Very truly yours,
/s/ Clell L. Woods
Clerk of the Supreme Court
—28a—
APPENDIX C
ILLINOIS SUPREME COURT
CLELL L. WOODS, CLERK
SUPREME COURT BUILDING
SPRINGFIELD, ILL. 62706
March 14, 1979
Ligtenberg, DeJong, Poltrock
& Giampietro
Attorneys at Law
134 N. LaSalle Street
Suite 1100
Chicago, IL 60602
In re: Leonard Berlin, petitioner, vs. Gilbert
Nathan, et al., respondents. No. 51367
Gentlemen:
The Supreme Court today made the following an-
nouncement concerning the above entitled cause:
The motion by petitioner for reconsideration
and to vacate the order denying petition for
appeal as a matter of right is denied.
Very truly yours,
/s/ Clell L. Woods
Clerk of the Supreme Court
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.