Petition — Drummond v. Stahl

Supreme Court, U.S,

rtiLe @

80-113¢ JAN 6 1981

MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

October Term, 1980

WILLIAM H. DRUMMOND,

Petitioner,

VS.

LOUIS A. STAHL and MARY K. STAHL, Husband and

Wife and STREICH, LANG, WEEKS, CARDON

& FRENCH, a Professional Association,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF ARIZONA

DonaLp R, Kunz

(Counsel of Record)

3003 North Central Avenue

Suite 2600

Phoenix, Arizona 85012

Counsel for Petitioner

E. L. Menpenwatt, Ixc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

THE QUESTIONS PRESENTED FOR REVIEW

This petition requests the Court to review two sep-

arate questions.

Can a state, consistently with the due process require-

ments of the Fourteenth Amendment, confer on a lawyer

“absolute” privilege to file charges of unethical conduct

against another lawyer (his litigation opponent) which

were concededly groundless and which were made for the

concededly malicious purpose of delaying the litigation:

Question 1—where the charges were made to the

bar association?

Question 2—where the charges are made to the

court in which the litigation was pending?

The effects of the mere acts of filing of these two sep-

arate charges—without regard to their merits—were:

(a) to deprive the accused lawyer’s client of his ex-

perienced, knowledgeable counsel in the midst

of major litigation; and

(b) to deprive the accused lawyer of his long-time,

very valuable client without any remedy what-

ever for this injury.

By a 3-2 split decision,* the Supreme Court of Arizona

has refused to review these questions.

*A. 23.

Il

THE PARTIES TO THE PROCEEDING

Petitioner Drummond and Respondent Louis A. Stahl

are practicing lawyers, both members of the State Bar of

Arizona.

Respondent Streich, Lang, Weeks, Cardon & French,

P.A., is the law firm of which Stahl is a partner.

Respondent Mary K. Stahl is the wife of Louis Stahl

and is joined only as a member of that marital community.

The State Bar of Arizona filed an amicus curiae brief

below, but was not a party to the proceedings.

Ii

TABLE OF CONTENTS

PETITION—-

The Questions Presented for Review ..............:-....-. I

The Parties to the Proceeding ....................:.:s0sssese0-- II

MI OE FARA ong ane sese cesses conics ibilabuidaside IV

ee Re Eee 1

Statement of Jurisdiction ......22.....2.......ccccoceccssocesese 2

The Constitutional Provisions Involved ................ 3

ONIN OE IN naan cseasn ssn ss ctssheninenenerancocs 3

Reasons for Granting the Writ 20000000... 9

I RR aac n OR Se Sk Rac OL ERR EI 14

APPENDIX—

TN a ee he Al

Other Orders Below and Excerpts Showing How

Constitutional Questions Were Raised and De-

Ne cscs cls doasasasien teachin tas esesceeictediaeenciissoscutcncsioaslvaaides Al0

a EEE MET REE EE Al0

Motion for New Trial (Excerpt) 2.0.0.0... All

Order Denying New Trial .....0.0..0.0...........ccese0e- Al2

Appellant’s Opening Brief (Excerpt) .............. Al13

Appellant’s Reply Brief (Excerpt) .................. Al7

Opinion Below (Excerpt) ..............:cccececcssesseeeeeees Alg

Motion for Rehearing (Excerpt) 0.000000... A20

Order Denying Rehearing ....00...............escssce- A22

Order Denying Review ....0..........:.ccccccccceccsseceeeeee A23

OE ihc eskiic itis ostincaniietititanendaaints seek cent A24

Constitutional Provisions and Statutes Involved .... A25

IV

TABLE OF AUTHORITIES

CASES

Abood v. Detroit Board of Education, 431 U.S. 209 2

Angle v. Chicago St. M. & O. Ry., 151 U.S. 1 ........ 9

Bates v. State Bar of Arizona, 433 U.S. 350 ............ 14

Forbes Pioneer Boat Line v. Everglades Drainage

MT, I is Uy UO acne cccsectccccsecntceccssccereeye 9

Gibbes v. Zimmerman, 290 U.S. 326-0... 9

Graham v. Goodcell, 282 U.S. 409, 426 0000... 9

Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139 ............ 11

Middleton v. Wallichs Music & Entertainment Co.,

Inc., 24 Ariz.App. 180, 536 P.2d 1072 (1975) ........ 9

Ue hy, I OT, TI encase cates ccscieccneceencee 10

Republic National Gas Co. v. Oklahoma, 334 U.S.

EE SOE ES LOT ARNEL eee TA Re 3

Saf-Gard Products, Inc. v. Service Parts, Inc., 532

F.2d 1266 (9th Cir. 1976), cert.den. 429 U.S. 896 4

Shelley v. Kraemer, 334 U.S. 1 .o......n.n..-ncccccescceseseceeee 10

Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519... 11

Zecen ©. Arizona, 419 U.S, 361 ................................... 3

Town of Chino Valley v. State Land Department,

‘ 119 Ariz. 243, 580 P.2d 704 (1978) 200. 9

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment, Section 1 0.000.000.0000... 3, 7,9

STATUTES

es 2

SERRE i nae aaa 2

Re CD ova crecshncnceesssvquseissocundicciisecaestie 2

I Nat dcotesthabesioncnnonsusscessteicidessesnisinesnn 2

OTHER AUTHORITIES

12 Moore on FEDERAL PrRacTIcE—

1508.01[3]

Ce

RI, i oiciealiiceinains

Rest. (2d) Torts §587

| __, RRCaeT :

In the Supreme Court of the United States

October Term, 1980

WILLIAM H. DRUMMOND,

Petitioner,

VS.

LOUIS A. STAHL and MARY K. STAHL, Husband and

Wife and STREICH, LANG, WEEKS, CARDON

& FRENCH, a Professional Association,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF ARIZONA

William H. Drummond, your Petitioner, prays that a

writ of certiorari issue to review the judgment of the Court

of Appeals of the State of Arizona expressed in its man-

date issued October 24, 1980, in the above-entitled case.

THE OPINION BELOW

The opinion of the Court of Appeals of the State of

Arizona has not been reported but is set forth in the Ap-

pendix, pp. Al-9.

Og

STATEMENT OF JURISDICTION

The Court of Appeals of the State of Arizona has

original jurisdiction of all civil appeals from the state’s

trial court of original jurisdiction, the Superior Court.

On appeal from the Superior Court, the Court of Appeals

entered its decision adverse to Petitioner on August 19,

1980. A timely Motion for Rehearing? was denied* on

September 24, 1980. Petitioner then filed a timely Petition

for Review‘ in the Supreme Court of Arizona. By a 3-2

decision, the Arizona Supreme Court denied review on

October 15, 1980.° The Court of Appeals then issued its

mandate on October 24, 1980.°

This Court has jurisdiction under Title 28 United States

Code §1257’ to review the judgment below, in that:

(a) The Court of Appeals is the “highest court” of

Arizona “in which a decision could be had”, since

the Supreme Court of Arizona denied review

(Abood v. Detroit Board of Education, 431 U.S.

209; 12 Moore on FepERAL Practice {/509.01) ;

(b) the mandate of the Court of Appeals is a “final

judgment” since it effectively determines this liti-

gation, leaving nothing to be decided in the Arizona

courts (12 Moore on FepERAL Practice {[508.01[3] )

and nothing remains to be done there except the

ministerial act of entry of judgment on the man-

ARS §12-120(A) (A25); ARS §12-120.21(A)(1) (A26).

ARS §12-120.24 (A26).

A22.

ARS §12-120.24 (A26).

A23.

A24-25.

A27,

—~FFrPPre

3

date (Republic National Gas Co. v. Oklahoma,

334 U.S. 62); and

(c) Petitioner’s privileges and immunities under the

Constitution, set up and claimed in this petition,

were set up and claimed at every stage of the pro-

ceedings below (Tacon v. Arizona, 410 U.S. 351;

12 Moore on FEDERAL Practice 510.01).

THE CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the application of Section 1 of the

Fourteenth Amendment to the Constitution:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

Preface

This is not a libel, slander or defamation case. Pe-

titioner’s cause is based on Respondent’s acts of initiating

court and bar association proceedings and the effects of

these acts on Petitioner’s pocketbook, not upon his profes-

sional or personal reputation. The wider effects of Respon-

dent’s acts are felt in the public arena—the proper and

efficient administration of the judicial system.

7%

4

Stahl’s Groundless Acts and Their Effects

Drummond and Stahl are lawyers who were opponents

in a major lawsuit. In the midst of this litigation, Stahl

did two things: (1) he filed conflict of interest charges

against Drummond with the State Bar of Arizona, and

(2) he moved the court in which the case was pending

to disqualify Drummond as counsel for plaintiff.

Each of these acts had two effects: the litigation

came to a complete halt, costing Drummond’s client over

$100,000 in lost income, and Drummond lost his valuable

client of many years.

The charges filed by Stahl were investigated by the

State Bar of Arizona and found to be groundless. In fact,

the way this case comes up,® Stahl’s acts must be taken

here as malicious, taken for the totally improper purposes

of delaying the pending litigation by depriving Drum-

mond’s client of his knowledgeable, experienced attorney,

at the very time he was most needed.

Background Facts

Drummond, a registered patent attorney, had repre-

sented a talented inventor,® Walter Avrea, for many years

until the events of 1976-77 which precipitated this case.

In 1975, Drummond represented Avrea in negotiating

a major contract with Saf-Gard Systems, Inc., to com-

mercially exploit all of Avrea’s patented inventions. Saf-

Gard requested Drummond to represent both Avrea and

Saf-Gard in litigation involving infringement of these

patents by others. Drummond agreed to represent both

8. A2.

9. See, eg., Saf-Gard Products, Inc. v. Service Parts, Inc.,

532 F.2d 1266, 1269 (9th Cir. 1976), cert.den. 429 U.S. 896.

5

Avrea and Saf-Gard, but only after the potential for a con-

flict of interest was discussed and resolved and only after

Saf-Gard, separately represented, agreed that if a conflict

did arise, Drummond would continue to represent Avrea,

his long-time client.

In 1976, the conflict arose. For reasons not material

here, Drummond filed a suit on Avrea’s behalf against

Saf-Gard. This suit involved the title to the Avrea patents

which Drummond was also attempting to enforce on behalf

of both Avrea and Saf-Gard in the infringement litigation

with third parties. Stahl appeared as attorney for Saf-

Gard in the action filed by Drummond involving the

title question.

Several months after Drummond filed the Avrea v. Saf-

Gard suit, Drummond noticed the deposition of the owner-

president of Saf-Gard. Only then did Stahl first raise

the question of Drummond’s supposed conflict of interest.

He threatened that, unless Drummond immediately with-

drew as Avrea’s attorney in the title litigation, he (Stahl)

would file charges of unethical conduct with the Bar and

with the court. Stahl, though new on the scene, declined

Drummond’s invitation to first discuss the matter and

filed (1) charges with the Bar Association, and (2) a mo-

tion in the court to disqualify Drummond as Avrea’s at-

torney.

The Bar thoroughly investigated Stahl’s charges and

“concluded that there was no conflict of interest and the

Bar found no probable cause to proceed against Drum-

mond”.'® But, in the meantime, Stahl’s tactics were suc-

cessful: Avrea’s litigation with Saf-Gard was stalled and

he lost his royalty income. As Avrea put it:

A. (Mr. Avrea) That regardless of whether there

was any conflict of interest or not, I think you

10. Ad4.

6

and I discussed it, it allowed them to delay us

eight or ten months without being able to proceed

and get back my only source of income as my

patents. I believe that eight or ten month delay

cost us well over $100,000 income from those

patents. I think you realize that. I think the

expense of having to go through and bring some-

body else up to date while the Arizona Bar As-

sociation was hearing this conflict charge, that I

had to pursue and I had to start from ground

zero and educate people of the things that hap-

pened over a period of time when you were my

representative whereas all this time I counted

on you being there because you were present in

all these meetings and see the negotiations in the

various things.

Q. (Mr. Drummond) When you say bring other peo-

ple up to date, you mean other attorneys?

A. Replacement counsel, yes, and as I say, losing

eight or ten months while the Arizona Bar de-

cided what in the hell to do.

Because of this delay, Avrea was forced to obtain

other counsel to continue the litigation and, as a direct

consequence, his attorney-client relationship with Drum-

mond, which had existed for many years, was destroyed.

History of This Litigation

After Drummond lost his long-time client, he filed this

action against Stahl in the state courts of Arizona. The

suit alleged that Stahl tortiously interfered with the at-

torney-client contractual relationship between Drummond

and Avrea, that Stahl’s acts were malicious and that these

acts were the direct and proximate cause of the destruction

7

of the contractual relationship between Drummond and

his client.

Stahl moved for summary judgment, claiming ‘“abso-

lute privilege”. Drummond resisted this motion on the

ground that Stahl’s acts were, at most, conditionally priv-

ileged and that such conditional privilege required the trier

of fact to determine Stahl’s state of mind, a fact placed in

sharp dispute by the motion papers and Drummond’s re-

sponse.

The trial court granted summary judgment," denied

a new trial’* and Drummond appealed to the Court of Ap-

peals for the State of Arizona. In this appeal, Stahl and the

State Bar of Arizona, amicus curiae, argued that he was en-

titled to “absolute privilege”. Drummond argued (1) that

the privilege, if any, was “conditional”, (2) that summary

judgment was inappropriate in view of the sharp dispute as

to Stahl’s state of mind, and (3) that if the court ignored

Stahl’s state of mind and applied “absolute privilege” in

the face of malice, this‘would violate Drummond’s privilege

against deprivation of property without due process of law

under the Fourteenth Amendment.

The Court of Appeals" applied “absolute privilege” to

b. th of Stahl’s acts, the bar complaint’ and the motion in

court to disqualify Drummond,"* notwithstanding that mal-

ice was assumed as a fact. In his motion for rehearing,

Drummond specifically pointed out that the Court of Ap-

peals had erred on the Constitutional question."* The Court

11. Alo.

12. Al2.

13. Al-9.

14. Av.

15. Aé6.

16. A20.

8

of Appeals denied Drummond’s motion for rehearing.” A

petition for review was filed in the Supreme Court of Ari-

zona, which considered the matter on the basis of the record

before the Court of Appeals,’* which included Drummond’s

motion for rehearing which had emphasized the Constitu-

tional issue.

By a 3-2 decision, the Supreme Court of Arizona de-

nied review.’® The Court of Appeals then issued its man-

date” directing entry of judgment against Petitioner.

Statement Under Rule 21.1(h)

Petitioner raised the federal questions on which he

seeks this review, as follows:

(1) in the court of first instance, by a timely Motion

for New Trial,” which was denied;”?

(2) in the intermediate Court of Appeals, by arguments

in Appellant’s Opening Brief*® and in Appellant’s

Reply Brief** which were rejected in the opinion

below** and by a timely Motion for Rehearing”

which was denied;”" and

(3) in the Supreme Court of Arizona, by a timely Peti-

tion for Review, which was denied.”8

17. A22.

18. A23.

19. A23.

20. A24,

21. All.

22. Al2.

23. A13-16

24. A17-18

25. Al1-9.

26. A20.

27. A22.

28. Ad23.

REASONS FOR GRANTING THE WRIT

Background Principles

The law has historically provided a cause of action

for damages for tortious interference with contract rela-

tionships (Angle v. Chicago, St. M. & O. Ry., 151 U.S. 1)

and such an action is routinely recognized under Arizona

law (Middleton v. Wallichs Music & Entertainment Co.,

Inc., 24 Ariz.App. 180, 536 P.2d 1072 [1975]).

Constitutional Principles

A cause of action is “property” under the Fourteenth

Amendment which is beyond the power of the state to

take without due process of law. Graham v. Goodcell, 282

U.S. 409, 426 (cause of action for amount due under con-

tract)s Forbes Pioneer Boat Line v. Everglades Drainage

District, 258 U.S. 338, 339 (cause of action for tolls unlaw-

fully collected under state statute); Angle v. Chicago, St.

M. & O. Ry., supra, 151 U.S. at 25-26 (cause of action for

tortious interference with contract).

The Constitution does not require a state to provide a

damaged party any particular remedy for a cause of action,

nor does it require that a state provide any particular pro-

cedure to obtain that remedy, but the Fourteenth Amend-

ment does guarantee the preservation of some substantial

right to redress by some effective procedure (Gibbes v.

Zimmerman, 290 U.S. 326) or, as the Arizona Supreme

Court, sitting in banc, said (following Gibbes):

“an efficacious remedy.” (Emphasis added).

(Town of Chino Valley v. State Land Department, 119

Ariz. 243, 580 P.2d 704 [1978]).

10

The Private Effect of the Decision Below

The State of Arizona, through “state action” by its

courts (Shelley v. Kraemer, 334 U.S. 1; Paul v. David, 424

U.S. 693) has violated this fundamental tenent of Constitu-

tional law by judicially conferring absolute privilege on

Stahl, depriving Dr«mmond of any remedy whatever in

any forum under any process of law under any conceivable

state of fact.

The Public Effect of the Decision Below

The “public policy” reasons advanced by the court be-

low for conferring this “absolute privilege” are so shallow

as to be “all surface”, and we respectfully submit, are

legally unsound and factually uncompelling. The result of

the holding below will not subserve but will actually sub-

vert strong public interests.

The Decision and Its Ramifications in Litigation

The present decision of the court below announces

two new “rules of the road” in litigation practice.

The first new rule says that an attorney can, with

impunity, without any truthful cause, in violation of his

sworn duty as an officer of the Court, and directly con-

trary to both Federal and State Rule 11(a) of Civil Pro-

cedure, delay any court proceeding by the simple device

of moving the court to disqualify opposing counsel on

false allegations of conflict of interest. He is “absolutely

privileged” to do this.

To reach this result, the court below had to abolish

the distinction between wholly different causes of action

(i.e., defamation, on the one hand, as against tortious inter-

ference on the other hand) which has been recognized

11

in Arizona” and by the REesTaTEMENT® for decades and

which has been recognized at common law for perhaps

centuries. The court below recognized the distinction but

dismissed it with the following few words:

“Although these Arizona cases*' (involving libel and

slander) do not directly involve a case of tortious

interference ... (they) control the disposition of this

case.” (A6, paraphrased)

The second new rule says that an attorney who is

schooled in, tested by bar examination upon, and expected

to thoroughly understand the principles of legal ethics

can, with impunity, knowingly and for improper purposes,

file false charges of unethical conduct with the state bar

against his litigation opponent, cause the most significant

professional and financial damage to his fellow lawyer,

and, most importantly, effectively deprive the opposing

party of his experienced, long-time counsel! Again, he

is “absolutely privileged” to do this, and neither the lawyer

thus accused nor the client thus deprived has any remedy!

This second new rule of the “litigation road” is again

based on the abolition of the previously clear distinction

between a cause of action for defamation and a cause

of action for tortious interference and upon the further

ground of “public policy”.

29. Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519, cited

with approval by the Arizona Supreme Court in Kelly v. Perry,

111 Ariz. 382, 531 P.2d 139.

30. The RESTATEMENT provides absolute privilege for de-

famatory statements in court proceedings [REST. (2d) Torts §587]

but only a conditional privilege for “wrongful institution of pro-

ceedings” [ResT. (2d) Torts §674].

31. All of the other cases from other jurisdictions cited in

the decision below are, similarly, libel and slander cases rather

than cases dealing with tortious interference or wrongful insti-

tution of proceedings, civil malicious prosecution, etc.

Ls

12

The “public policy” argument (advanced by the State

Bar of Arizona as amicus curiae and adopted by the court

below) is an abject confession of the inability or the failure

of the court below to distinguish between “conditional”

and “absolute” privilege—concepts which are routinely ap-

plied when the litigants are private parties—when the

litigation instead involves lawyers. The second new rule

goes far beyond what is required to avoid “chilling” effects

and even further beyond what is required to enable the

bar to -

“continue to enjoy the privilege of a self-regulating

profession.” (A8)

An “absolute” privilege may need to be extended, as we

acknowledged below, to complaints by laymen—but why

to lawyers? Are not lawyers to be held to the highest

standards, in view of the powers which their privileges

as lawyers entitle them to wield? And if that be true,

despite those privileges as lawyers, are lawyers then simply

to be “lumped together” with the “general public” so far

as immunities are concerned? The State Bar of Arizona,

in its brief amicus curiae below, urged just that:

“We are not concerned with just the immunity of

lawyers but of the public generally, of which the

lawyers constitute but a small part.” (Emphasis added)

The court below agreed with the position of amicus curiae

by drawing no distinction between a lawyer, on the one

hand, and the “general public” on the other hand, thus

conferring upon lawyers the same immunities belonging

to the general public. We respectfully disagree with that

premise. It is just plain wrong for lawyers, as a class,

to claim the powers of that class, which in no sense are

enjoyed by the general public, but then to attempt to

seek the immunities of the “general public” when called

to account for the wrongful exercise of those powers.

13

The public will not be the beneficiary of these two

new rules. Instead, it will be the marginal lawyer, who

is not ready for trial (or would simply like to compel

a change of opposing counsel) or the marginal client, whose

only hope is delay, who will benefit. The public will

pay, not benefit, from these delays.** These new rules

unquestionably invite delay with its increased litigation

costs and invite congestion of court calendars and thereby

would discourage and defeat the right of the public to

ready, speedy access to our courts, and to the services

of the attorney of one’s own choosing. Surely the legal

profession is not so ineffective in dealing with itself that

it cannot fashion rules of conduct for lawyers which will

not invite such consequences.

The answer, as to lawyers, is clear and apparent: It

is conditional privilege. If the delays, increased cost and

congestion of litigation calendars invited by the decision

below are to be avoided, considerations of sound public

policy dictate that counsel who wrongfully utilize court

and bar association procedures for such delay be held

personally accountable for the damage they cause, a result

which can only be reached if conditional privilege is ap-

plied.

The court below has decided specific, important ques-

tions of federal Constitutional law. In so deciding, the

court below ignored applicable decisions of this Court be-

32. Report of Bar Counsel to the State Bar of Arizona:

“One cannot avoid considering the interest of Avrea [Drum-

mond’s client in the case in which Drummond’s disqualifi-

cation was urged] in this situation. For many years, he

had relied on the advice and guidance of Drummond. He

undoubtedly believed that Drummond was his attorney

throughout the period of his association with Systems. He

should not be told to abandon him and seek other counsel

unless strong and compelling reasons under the Code of Pro-

fessional Responsibility can be found.” (Emphasis ours)

14

cause, factually, they were not squarely on point. These

federal questions should be settled by this Court because

(1) this Court has not decided these questions,

(2) there is a split of authority among the courts

of last resort of the States on these questions

(A8),

(3) the decision below does not even satisfactorily

resolve these questions in Arizona, due to the

split 3-2 decision (A23) of the Arizona Supreme

Court not to review the decision of the inter-

mediate Court of Appeals, and

(4) wholly aside from the private effect on petitioner’s

constitutional rights, the decision below has broad

and unfortunate implications in the public arena

which is the direct responsibility of this Court—

the effective, timely and efficient administration of

the judicial system.

CONCLUSION

We urge that the court below glossed over and erred

on a basic Constitutional issue dressed in the sheep’s cloth-

ing of a mere “private” issue. Legally, it is no answer

that private interests must give way to “public policy”

when the private interests are Constitutionally guaranteed.

And, practically, the protection of private Constitutionally

guaranteed interests has a curious way of turning out

to be the best way of protecting the public interest. Bates

v. State Bar of Arizona, 433 U.S. 350.

We respectfully urge the Court to grant this Petition

for a Writ of Certiorari.

DonaLp R. Kunz

3003 N. Central Avenue

Phoenix, Arizona 85012

Counsel for the Petitioner

Al

APPENDIX

THE OPINION BELOW

(Filed August 19, 1980)

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CIV 4531

DEPARTMENT C

WILLIAM H. DRUMMOND,

Plaintiff-Appellant,

V.

LOUIS A. STAHL and JANE DOE STAHL, husband and

wife, and STRETCH, LANG, WEEKS, CARDON AND

FRENCH, a Professional Association,

Defendants-Appellees.

OPINION

An Appeal from the Maricopa County Superior Court

Cause No. C-362697

The Honorable Rufus C. Coulter, Jr., Judge

AFFIRMED

OGG, Chief Judge

The appellant/plaintiff, William H. Drummend,

brought suit in the Maricopa County Superior Court alleg-

ing a tortious interference by the appellees/defendants

with an attorney-client contractual relationship of which

Drummond, as a practicing member of the State Bar of

Arizona, was the beneficiary. Drummond asserts the ele-

A2.

ments of such a cause of action are set forth in the case

of Middleton v. Wallich’s Music & Entertainment Company,

Inc., 24 Ariz.App. 180, 536 P.2d 1072 (1975). The defen-

dant, Louis A. Stahl, is also a practicing member of the

State Bar of Arizona. The remaining defendants are

Stahl’s law firm, a professional association, and his wife.

After all pleadings were filed, the trial judge granted

defendants’ motion for summary judgment and plaintiff

filed this appeal. The State Bar of Arizona was granted

permission by this court to file an Amicus Curiae brief

and participate in oral argument of this appeal.

Drummond sets out the two threshold issues to be de-

termined a::

1. Are Stahl and his law firm “absolutely privileged”

to institute disqualification proceedings in the trial

court to prevent Drummond’s further participation

in pending civil litigation?

2. Are Stahl and his law firm “absolutely privileged”

under the facts of this case to file charges of un-

ethical conduct against Drummond with the State

Bar of Arizona?

In this appellate review of the summary judgment,

we must view the evidence and the inferences to be drawn

therefrom in a light most favorable to the appellant. Poggi

v. Kates, 115 Ariz. 157, 564 P.2d 380 (1977); Riedisser v.

Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975). Viewing the

evidence in such a manner, it appears that Drummond

was hired as a patent attorney by Walter C. Avrea and

had a contractual attorney-client relationship with Avrea

dating back to 1965. Drummond also represented both

Avrea and a corporation, known as Saf-Gard Systems, Inc.,

in protecting Avrea’s inventions which were licensed to

Saf-Gard, and in certain other patent infringement actions

A3

where Avrea and Saf-Gard had similar interests. Drum-

mond’s representation of both Avrea and Saf-Gard was

undertaken only after the possibility of a future conflict

of interest was discussed by all parties and their attorneys.

It was determined there was no conflict of interest in these

limited areas, and if a conflict of interest did arise between

Avrea and Saf-Gard, that Drummond would continue to

represent his old client, Avrea.

On February 25, 1976, Drummond filed a Maricopa

County Superior Court action on behalf of Avrea and

others against Saf-Gard and others. On May 13, 1976,

Stahl, representing Saf-Gard, notified Drummond’s office

by a hand-delivered letter that Drummond must withdraw

as Avrea’s attorney on the ground of a conflict of interest

with Saf-Gard. The letter further notified Drummond

that unless he withdrew from the litigation, Stahl would

file charges of unethical conduct against him with the

State Bar of Arizona. According to Stahl’s affidavit, this

letter had been prompted by notification to Stahl by Saf-

Gard that Drummond had previously represented Saf-Gard

and possessed confidential information that would be de-

trimental to Saf-Gard in the pending litigation with Avrea.

Before responding to Stahl’s letter, Drummond filed

a complaint against Stahl with the State Bar of Arizona

and enclosed a copy of such complaint along with his reply

letter which stated:

“If you want to go ahead and file the complaint,

be my guest. However, if you have any interest in

confirming whether you have all of the facts, please

“call me and we can arrange a time for you to confer

with me before taking precipitous action.”

When Drummond failed to withdraw as requested,

Stahl did not further contact Drummond, but proceeded to

A4

file a complaint with the State Bar of Arizona. Stahl also

filed a superior court motion to compel Drummond to with-

draw from the pending Avrea v. Saf-Gard litigation. There-

after Drummond withdrew from representing Saf-Gard in

two pending patent infringement actions against third

parties, while continuing his representation of Avrea.

While the Stahl complaint was pending, Drummond

was requested by Saf-Gard to perform certain patent

services in other cases which were in fact performed.

Sometime later he withdrew from all representation of both

Avrea and Saf-Gard. Upon stipulation of counsel, Stahl’s

superior court motion to disqualify Drummond was post-

poned indefinitely.

It appears that prior to Stahl’s complaint with the Bar

Association, Drummond had always had a good attorney-

client relationship with Avrea, although Avrea owed him

substantial unpaid attorney fees. The Stahl complaint

and motion caused Avrea delay in his litigation while the

State Bar of Arizona investigated the complaint. Because

of this delay, Avrea requested that Drummond withdraw

as his counsel so that new counsel could be retained to

recommence the diligent prosecution of the case. After

many months, with no payments on Avrea’s past-due

balance, Drummond filed an action to recover past-due

attorney fees and expenses.

The Drummond complaint against Stahl was dis-

missed by the State Bar. The Stahl conflict of interest

complaint against Drummond was investigated by counsel

for the Arizona State Bar. The Bar counsel concluded that

there was no actual conflict of interest and the Bar found

no probable cause to proceed against Drummond.

In an affidavit filed by counsel for the State Bar of

Arizona, the following pertinent conclusions were found:

A5

“3. In the course of my investigation as bar

counsel, I discussed Mr. Stahl’s complaint with Mr.

Stahl and Mr, Jock Patton of Mr. Stahl’s firm. Based

upon such discussions and my review of those docu-

ments and materials which I considered material and

relevant to the complaint, it is my opinion that Mr.

Stahl’s complaint was brought in good faith.

4. Based upon my efforts in connection with my

activities as bar cuonsel, including both legal and

factual analysis, Mr. Stahl’s complaint was not frivo-

lous. It is my opinion that reasonable minds of the

bar could differ as to whether there existed an ethical

breach, even though it was my opinion that there was

no actual conflict of interest. The issues were diffi-

cult and I did substantial deliberation on this matter.”

It is Drummond's position that Stahl, while acting

on behalf of his marital community and as agent of his

firm, intentionally and maliciously induced or caused a

breach or termination of the Avrea/Drummond attorney-

client relationship, resulting in the loss of the monetary

and professional expectancies to be derived therefrom.

It is Stahl’s position that the motion to require Drum-

mond to withdraw from the superior court action and the

complaint filed with the State Bar of Arizona were abso-

lutely privileged and that Drummond has no cause of

action.

WAS THE SUPERIOR COURT MOTION

ABSOLUTELY PRIVILEGED?

It is our opinion that the motion filed by Stahl, on

behalf of his client Saf-Gard, to compel Drummond to

withdraw as Avrea’s attorney in the pending Avrea v.

Saf-Gard litigation was privileged under the facts of this

case.

A6

An affirmative defense, such as privilege, may be

raised and determined on a motion to dismiss, where the

facts constituting the defense appear in the pleadings. Si-

erra Madre Development, Inc. v. Via Entrada Townhouses

Association, 20 Ariz. App. 550, 514 P.2d 503 (1973). From

our reading of the pleadings and affidavits filed in the

motion for summary judgment, it appears there were suffi-

cient undisputed facts from which the trial judge could

grant summary judgment.

The allegation in the motion to compel Drummond

to withdraw on the grounds that he had a conflict of

interest is the type of defamatory statement in litigation

proceedings that should be absolutely privileged. Defama-

tory statements contained in pleadings are absolutely priv-

ileged if they are connected with or have any bearing

on or are related to the subject of inquiry. Sierra Madre

Development, Inc. v. Via Entrada Townhouses Association.

See Restatement (Second) of Torts § 587 (1977). Parties

to judicial proceedings are generally granted an absolute

privilege to use defamatory language in pleadings because

of an “overriding public interest” that persons should speak

freely and fearlessly in litigation. Stewart v. Fahey, 14

Ariz. App. 149, 150, 481 P.2d 519, 520 (1971). A statement

made in the course of a judicial hearing is absolutely

privileged as long as it bears some relation to the subject

judicial proceeding. Todd v. Cox, 20 Ariz. App. 347, 512

P.2d 1234 (1973). /

Although these Arizona cases do not directly involve

a case of tortious interference with a contractual relation-

ship, the reasoning and legal principles set out have appli-

cation to and control the disposition of this case. The

motion to force Drummond to withdraw as counsel had

a direct relationship to the superior court proceedings and

under the facts of this case was entitled to an absolute

privilege.

AT

WAS THE STAHL COMPLAINT TO THE ARIZONA

STATE BAR ABSOLUTELY PRIVILEGED?

Both Lrummond and Stahl make basically the same

arguments relative to this issue that they made to the

first issue. The State Bar of Arizona contends that public

policy dictates that there must be immunity to all persons

from any liability arising from the filing of a complaint

with the State Bar which charges an attorney with un-

ethical conduct. Drummond agrees there is a “conditional”

privilege, both as to the making of a report of Drummond's

supposed unethical conduct to the Bar Association and

as to the initiation of proceedings to disqualify Drummond

as Avrea’s counsel in the superior court. Drummond fur-

ther argues that these conditions include factual consider-

ations such as the truth or falsity of the matters alleged,

the motives of the defendant, the existence or non-existence

of probable cause, and the question of whether such con-

duct involved legal malice. Drummond concludes that

until such factual matters are determined by a trial, the

granting of summary judgment is in error.

The State Bar answers this argument by stating that

to allow a “conditional” privilege would allow the institu-

tion of a civil action by the mere addition of an “actual

malice” allegations. This would permit a civil action

against anyone who has complained to the State Bar and

subject such complainant to the full, expensive scope of

discovery and litigation, thus “chilling” the motivation of

those who believe they have knowledge of improper legal

behavior.

In our opinion, public policy and legal precedent com-

pel us to adopt the position that there is an absolute

privilege extended to anyone who files a complaint with

the State Bar alleging unethical conduct by an attorney.

A8

The State Bar of Arizona is an arm of the Arizona

Supreme Court. Bridegroom v. State Bar, 27 Ariz. App.

47, 550 P.2d 1089 (1976). The Supreme Court has directed

that written complaints against lawyers are to be filed

with the State Bar. Ariz. Sup.Ct. Rule 33(a)1. The State

Bar acts in a judicial capacity in dealing with the conduct

of attorneys. Wiener v. Weintraub, 22 N.Y.S.2d 330, 239

N.E.2d 540 (1968); Baggott v. Hughes, 34 Ohio Misc. 63,

296 N.E.2d 696 (1973). The Restatement (Second) of Torts

(1977), §§ 585-589, grants an absolute privilege for

defamatory statements made in a judicial proceeding, so

long as such statements bear some relationship to the

proceedings.

Although there is some authority to the contrary, Lee

v. W. E. Fuetterer Battery & Supplies Company, 323 Mo.

1204, 23 S.W.2d 45 (1929); Sassower v. Himwich, 236 N.Y.S.

2d 491 (1962), the majority of courts that have faced

this issue have held there is an absolute privilege for

anyone who files a complaint alleging unethical conduct

by an attorney with a State Bar Grievance Committee.

Wong v. Schorr, 51 Hawaii 608, 466 P.2d 441 (1970);

Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707 (1953);

Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423 (1974);

Wiener v. Weintraub; McCurdy v. Hughes, 63 N.D. 435,

248 N.W. 512 (1933); Ramstead v. Morgan, 219 Ore. 383,

347 P.2d 594 (1959).

We must weigh the possible harm to attorneys in

the filing of a malicious complaint against the need to

encourage the reporting of unethical conduct. In weighing

these conflicting interests, it is our opinion that public

policy demands the free reporting of unethical conduct

if we are to continue to enjoy the privilege of a self-

regulating profession.

A9

Drummond makes a further argument that any action

by the State of Arizona by either legislative enactment

or judicial decision to grant an absolute privilege would

amount to state action depriving Drummond of due process

of law and equal protection of the laws as guaranteed

by the 14th Amendment, Section 1 of the United States

Constitution, and by the parallel provisions of Article 2,

§§ 4 and 13 of the Arizona Constitution.

We have been cited to no reported cases supporting

such a theory and have been unable to find any such

cases. The existence of such an absolute privilege has

been upheld by the majority of states that have considered

this issue, and we see no validity to this challenge on

constitutional grounds.

The decision of the trial court granting summary judg-

ment is affirmed.

Jack L. Ogg, Chief Judge

Division One

Concurring:

Joe W. Contreras, Presiding Judge

Department C

Eino M. Jacobson, Judge

Al0

OTHER ORDERS BELOW AND EXCERPTS

SHOWING HOW CONSTITUTIONAL QUES-

TIONS WERE RAISED AND DECIDED

SUMMARY JUDGMENT

(Entered April 12, 1978)

THE SUPERION COURT OF ARIZONA

MARICOPA COUNTY

No. C 362697 (Assigned to the Honorable

Rufus C. Coulter - Div. 21)

William H. Drummond,

Plaintiff,

vs.

LOUIS A. STAHL and JANE DOE STAHL, husband

and wife, and STREICH, LANG, WEEKS,

CARDON & FRENCH, a professional association,

Defendants,

JUDGMENT

This matter having come before the court on defen-

dants’ motion for summary judgment on March 24, 1978,

the court having heard at that time oral argument of

counsel, the court having taken the matter under advise-

ment, and the court having given full consideration to

the matter,

IT IS ORDERED, ADJUDGED AND DECREED that

defendants have judgment against plaintiff.

DATED this 5 day of April, 1978.

Rufus C. Coulter, Jr.

Judge of the Superior Court

—

All

EXCERPT FOR MOTION FOR NEW TRIAL

IN COURT OF FIRST INSTANCE

(Filed Apri: i8, 1978)

IN THE SUPERIOR COURT OF THE

STATE OF ARIZONA

No. C-362697

WILLIAM H. DRUMMOND,

Plaintiff,

vs.

LOUIS A. STAHL, et ux., et al.,

Defendants.

MOTION UNDER RULE 59 A.R.C.P. FOR NEW TRIAL

NOW COMES PLAINTIFF and respectfully moves

the Court for a new trial of this action on the ground

that the Judgment entered April 5, 1978 is contrary to

law, in the following respects:

+ ** * * *

3. The Summary Judgment of April 5, 1978, granting

Defendant Stahl absolute immunity (as set forth in ground

No. 2 above), is state action depriving Plaintiff of equal

protection of the laws and due process of law as set forth

in the 14th Amendment (Section 1) of the Constitution

of the United States of America and the parallel provisions

of the Constitution of the State of Arizona. (Par. 3, p. 2,

Motion for New Trial)

Al2

ORDER DENYING NEW TRIAL

(Entered June 14, 1978)

IN THE SUPERIOR COURT OF THE STATE OF

ARIZONA IN AND FOR THE COUNTY

OF MARICOPA

No. C-362697

WILLIAM H. DRUMMOND,

Plaintiff,

vs.

LOUIS A. STAHL, et ux., et al.,

Defendants.

ORDER

Plaintiff's Motion for New Trial and Defendants’

Response thereto having been considered by the Court,

and the Court having heard the arguments of counsel

thereon, and being fully advised in the premises:

IT IS HEREBY ORDERED that Plaintiff’s Motion

for a New Trial is denied.

DONE IN OPEN COURT THIS 14 DAY OF JUNE,

1978.

Rufus C, Coulter, Jr.

Judge of the Superior Court

Al13

EXCERPT FROM APPELLANT’S OPENING BRIEF

IN THE COURT OF APPEALS OF THE

STATE OF ARIZONA

Division One

No. 1CA-CIV 4531

(Maricopa County Superior Court Cause No. C 362967)

WILLIAM H. DRUMMOND,

Appellant,

vs,

LOUIS A: STAHL and MARY KATHLEEN STAHL, hus-

band and wife, and STREICH, LANG, WEEKS, CARDON

& FRENCH, a Professional Association,

Appellees.

Plaintiff-Appellant, William H. Drummond, appeals

to the Court of Appeals of the State of Arizona, Division

One, from the Judgment of the Superior Court of Maricopa

County, Honorable Rufus C, Coulter, Jr., presiding, entered

pursuant to an Order granting Summary ~udgment in

favor of Defendants-Appellees and from the subsequent

Order denying Plaintiff’s Motion for New Trial.

* * * * *

V. APPLICATION OF AN “ABSOLUTE PRIVILEGE”

TO STAHL’S ACTIONS WOULD CONSTITUTE

“STATE ACTION” DEPRIVING DRUMMOND OF

DUE PROCESS OF LAW AND EQUAL PROTEC-

TION OF THE LAWS.

If the action of the Trial Court in granting Defen-

dants’ Motion for Summary J udgment is sustained on a

theory of “absolute privilege’, then the granting of sum-

Al4

mary judgment by the Trial Court and the affirmance of

that action by this Court constitutes state action denying

Drummond due process of law and equal protection of the

laws as guaranteed by the 14th Amendment (Section 1)

of the United States Constitution and by the parallel pro-

visions (Article 2, §4 and §13) of the Constitution of the

State of Arizona.

Section 1 of the 14th Amendment to the Constitution

of the United States provides, inter alia:

“

. nor shall any State deprive any person of

life, liberty or property without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”

It is clear that the law of the State of Arizona pro-

vides a cause of action for damages for tortious interference

with advantageous contractual relationships. See, e.g.,

Middleton v. Wallichs Music & Entertainment Co., Inc.,

cited supra page 24. This cause of action is a vested “prop-

erty” right which is protected against impairment by

state action under the 14th Amendment. Terraccioma v.

Magee, 148 A.2d 68, 53 N.J.Super 557 (1959); Bush v. Reid,

516 P.2d 1215 (Alaska 1973) and it is clear that the action

of the Court below and any action of this Court applying

an “absolute” immunity rule would constitute “state ac-

tion”; Shelley v. Kraemer, 68 S.Ct. 836, 92 L.Ed. 1161, 334

U.S. 1 (1948); Paul v. Davis, 96 S.Ct. 1155, 47 L.Ed.2d 405,

424 U.S. 693 (1976); National Airport Corp. v. Wayne Bank,

252 N.W.2d 519 (Mich. App. 1977); United States v. Stan-

dard Oil Co. of California, 21 F.Supp. 645 (D.C.Cal. 1938),

aff'd 107 F.2d 402 (9th Cir. 1940).

While neither the Federal nor the State Constitu-

tions require that a state provide any particular procedure

or particular -medy to a plaintif who is injured by tor-

Al5

tious conduct of another, they do guarantee the preserva-

tion of a substantial right to redress by some effective

procedure. Gibbes v. Zimmerman, 54 S.Ct. 140, 78 L.Ed.

342, 290 U.S. 326 (1933).

Applying the foregoing principles, the courts have

condoned state action which places limitations upon lia-

bility of governmental officers and private persons or

firms, so long as the limitations were reasonable. For ex-

ample, a reasonable (6-year) period of limitations on a

claim for medical malpractice is not a denial of due process

or equal protection, Landgraff v. Wagner, 26 Az.App. 49,

546 P.2d 26 (1976) but a general and very short (120-day)

statute of limitations on tort claims against political sub-

divisions and municipalities was held unconstitutional as

applied to claims by minors as a denial of due process,

Hunter v. North Mason High School, 529 P.2d 898, 12

Wash.App. 304 (1974), aff'd. 539 P.2d 845, 85 Wash.2d

810 (1975).

And an Illinois statute conferring conditional immunity

from tort liability on employees of a political subivision

was held constitutional only as it permitted escape from

liability for simple negligence and did not attempt to confer

immunity for willful or wanton negligence, Sullivan v.

Midlothian Park District, 52 Ill.2d 271, 281 N.E.2d 659

(1972). But state action authorizing immunity from civil

damages for libel if a newspaper merely published a ro-

traction was invalid as a denial of due process, Byers v.

Meridian Printing Co., 95 N.E. 917 (Ohio, 1911).

As noted above, Plaintiff-Appellant does not seek a

ruling of this Court that Defendant Stahl’s activities were

wholly unprivileged, and we acknowledge the undoubted

existence of a conditional privilege, both as to the making

of a report of Drummond’s supposed unethical conduct to

the Bar Association and as to the initiation of proceedings

Al6

in the Superior Court to disqualify Drummond as Mr.

Avrea’s counsel. The “conditions”, however, upon which

such privilege must be founded must include factual con-

siderations of the truth or falsity of the matters alleged,

the purpose or motive of the Defendant, the existence or

non-existence of probable cause and, without doubt, the

question of whether such conduct involved legal malice.

Any action by the State of Arizona, by either legislative

enactment or judicial decision, to remove such considera-

tions from a determination of the actor’s liability, i.e., the

imposition of a theory of “absolute” privilege, would

amount to clear “state action” which deprives Drummond

of due process of law and the equal protection of the laws.

(Appellant’s Opening Brief, pp. 37-41)

Al17

EXCERPT FROM APPELLANT’S REPLY BRIEF

IN THE COURT OF APPEALS

OF THE

STATE OF ARIZONA

Division One

No. 1 CA-CIV 4531

(Maricopa County Superior Court Cause

No. C 362697)

WILLIAM H. DRUMMOND,

Appellant,

VS.

LOUIS A. STAHL and MARY KATHLEEN STAHL,

husband and wife, and STREICH, LANG, WEEKS,

CARDON & FRENCH, a Professional Association,

Appellees

* *£+ * & &

We have but one further comment: This Reply Brief

does not address itself to the Constitutional considerations

raised in the Opening Brief due only to the fact that that

issue was not addressed in the Appellees’ Answering Brief

[except for Appellees’ notation that Appellees were aware

of no similar case which “has ever been challenged on Con-

stitutional grounds”; (AB11)]. Matters of Constitutional-

ity are not, of course, confined to matters “heretofore

raised”; if they were, Arizona juries in negligence cases

would probably still be instructed that they “must” re-

Al8

turn a verdict for the defendant if plaintiff was found to

be contributorily negligent in any degree (a practice which

was consigned to “past history” when this Court first com-

prehensively addressed the problem in 1956 in the case of

Wolfswinkel v. Southern Pacific Co., 81 Ariz. 302, 305 P.2d

447, notwithstanding that the Constitutional provision re-

sulting in the change of practice had been enacted in

1910!) Anpellant respectfully submits, of course, that if

disposition of the “threshold issues” of this action involve

a conference upon Appellees of “absolute immunity”, then

the Constitutional issues raised in Appellant’s Opening

Brief ought properly to be met. (Appellant’s Reply Brief,

pp. 34-35)

Alg

EXCERPT FROM THE OPINION BELOW

(Filed August 19, 1980)

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CIV 4531

DEPARTMENT C

WILLIAM H. DRUMMOND,

Plaintiff-Appellant,

v.

LOUIS A. STAHL and JANE DOE STAHL, husband

and wife, and STREICH, LANG, WEEKS, CARDON

AND FRENCH, a Professional Association,

Defendants-Appellees.

OPINION

* * * * +

Drummond makes a further argument that any action

by the State of Arizona by either legislative enactment

or judicial decision to grant an absolute privilege would

amount to state action depriving Druminond of due process

of law and equal protection of the laws as guaranteed

by the 14th Amendment, Section 1 of the United States

Constitution, and by the parallel provisions of Article 2,

§§ 4 and 13 of the Arizona Constitution.

We have been cited to no reported cases supporting

such a theory and have been unable to find any such

cases. The existence of such an absolute privilege has

been upheld by the majority of states that have considered

this issue, and we see no validity to this challenge on

constitutional grounds.

A20

EXCERPT FROM MOTION FOR REHEARING

IN THE COURT OF APPEALS

OF THE STATE OF ARIZONA

DIVISION ONE

1 CA-CIV 4531

DEPARTMENT C

Maricopa County Superior Court No. C-362697

WILLIAM H. DRUMMOND,

Plaintiff-Appellant,

vs.

LOUIS A. STAHL and JANE DOE STAHL, husband

and wife, and STREICH, LANG, WEEKS, CARDON

AND FRENCH, a professional association,

Defendants-Appellees.

MOTION FOR REHEARING

Plaintiff-Appellant respectfully moves the Court, pur-

suant to Rule 22(a), A.R.C.P., for rehearing and reconsid-

eration of its decision filed August 19, 1980.

The Constitutional Issue

As set forth above, we respectfully urge that the Court

of Appeals erred in its decisions of “public” issues of

this appeal.

Just as respectfully, we urge that the Court of Appeals

glossed over and erred on a basic constitutional issue

dressed in the sheep’s clothing of a mere “private” issue.

A21

The clear effect of the present decision of the Court

of Appeals is that Plaintiff-Appellant, who suffered undis-

puted and significant financial damage at Defendant-Ap-

pellee’s hands, is absolutely barred from any remedy. And

this result is reached only because he is a lawyer, not

a layman.

The cases cited in our Opening Brief (please see pp.

37-41) clearly demonstrate that a State cannot, under the

14th Amendment, Section 1, of the United States Constitu-

tion, wreak these effects. It may be true that neither

we nor the Court could find the “spotted calf” case, but

the principles established by the cases we did find

and cite are clearly applicable under the facts of this

case. Drummond cannot be deprived of some form of rem-

edy and he cannot be so deprived either because he is

a lawyer or Stahl is a lawyer, when other plaintiffs who

are not lawyers have immediate recourse and where other

defendants who are not lawyers have, at most, only a

conditional privilege.

The lack of cases squarely on point is not enough

to justify a denial of due process or equal protection.

The same might have been and probably has been said in

virtually every case where a previously unasserted right

sought Constitutional recognition for the first time. It

is no answer that a private interest must give way to

“public policy” when the private interest is Constitution-

ally guaranteed. The protection of private Constitutionally

guaranteed interests has a curious way of turning out

to be the best way of protecting the public interest, as

is amply illustrated by the jurisprudence history of these

United States.

A22

ORDER DENYING MOTION FOR REHEARING

(Entered September 24, 1980)

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CIV 4531

DEPARTMENT C

MARICOPA County Superior Court

No. C-362697

WILLIAM H. DRUMMOND,

Plaintiff-Appellant,

V.

LOUIS A. STAHL and JANE DOE STAHL, husband

and wife, and STREICH, LANG, WEEKS,

CARDON AND FRENCH, a professional

association,

Defendants-Appellees.

ORDER

Plaintiff-Appellant’s Motion for Rehearing and the re-

sponse thereto were considered by the Court, Presiding

Judge Jack L. Ogg, and Judges Eino M. Jacobson and

Joe W. Contreras participating.

IT IS ORDERED denying plaintiff-appellant’s Motion

for Rehearing.

DATED this 24th day of September, 1980.

Jack L. Ogg, Presiding Judge

Department C

A23

ORDER DENYING PETITION FOR REVIEW

(Entered October 15, 1980)

SUPREME COURT

STATE OF ARIZONA

October 16, 1980

Supreme Court No. 15089-PR

Court of Appeals No. 1 CA-CIV 4531

Maricopa County No. C-362697

WILLIAM H. DRUMMOND,

Appellant,

vs,

LOUIS A. STAHL and JANE DOE STAHL, husband

and wife, and STREICH, LANG, WEEKS,

CARDON AND FRENCH, a Professional

Association,

Appellees.

, “ORDERED: Petition for Review = DENIED.”

Vice Chief Justice William A. Holohan and Justice

Jack D. H. Hays voted to grant.

Record returned to the Court of Appeals, Division

One, Phoenix, this 16th day of October, 1980.

Maryann Hopkins-Young, Clerk

A24

MANDATE OF COURT OF APPEALS

(Issued October 24, 1980)

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

1 CA-CIV 4531

DEPARTMENT C

WILLIAM H. DRUMMOND,

Plaintiff-Appellant,

Vv

LOUIS A. STAHL and JANE DOE STAHL, husband

and wife, and STREICH, LANG, WEEKS,

CARDON AND FRENCH, a Professional

Association,

Defendants-Appellees.

MANDATE

TO: The Honorable Superior Court for MARICOPA

County, Arizona in relation to Cause No. C-362697.

GREETING:

The above cause was presented in your Court and

was brought before Division One of the Court of Appeals

of the State of Arizona in the manner prescribed by law.

This Court rendered its opinion and caused the same to

be filed on the 19th day of August, 1980.

A25

A petition for review was filed. The record was for-

warded to the Arizona Supreme Court. By order dated

the 15th day of October, 1980, the Arizona Supreme Court

denied the petition for review, Supreme Court No. 15089-

PR.

NOW, THEREFORE, YOU ARE COMMANDED that

such proceedings be had in said cause as shall be required

to comply with the opinion of this Court, a copy of the

opinion being attached hereto.

WITNESS, THE HONORABLE JACK L. OGG, Pre-

siding Judge, Department C, Division One of the Court

of Appeals of the State of Arizona, this 24th day of Oc-

tober, 1980.

Glen D. Clark, Clerk

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Section 1 of the Fourteenth Amendment to the Constitution

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws,

ARS § 12-120(A)

There is created a court of appeals which shall con-

stitute a single court and such court shall be a court

of record.

ARS § 12-120.21(A) (1)

A. The court of appeals shall have:

1. Appellate jurisdiction in all actions and pro-

ceedings originating in or permitted by law to be ap-

pealed from the superior court, except criminal actions

involving crimes for which a sentence of death or

life imprisonment has actually been imposed.

ARS § 12-120.24

A party against whom a decision has been rendered

or against whom a motion for dismissal of the action

has been granted in the court of appeals may file in

such court a motion for rehearing after the rendition

of the decision or order of dismissal, setting forth with

particularity the reasons why he believes the decision

or order of dismissal erroneous. The opposite party

may file his response to such motion. If the motion is

denied, and the party against whom the decision or

order has been rendered desires a further review by

the supreme court, he shall serve upon the opposite

party and file with the clerk of the division a state-

ment that he desires such review. The clerk of the

division shall thereupon transmit the record in the case

to the clerk of the supreme court. The supreme

court shall either grant or deny the request for re-

view. No further briefs or oral argument shall be

filed or had unless the supreme court so directs. If no

request for review by the supreme court has been filed,

or upon the receipt from the clerk of the supreme court

of notification that the request for review has been

denied, the clerk of the division shall, if the matter

has been decided by formal Opinion, issue the mandate

of the court of appeals, if no written formal opinion

has been rendered then by certified copy of the order

of the court.

Title 28 U.S.C. § 1257

Final judgments or decrees rendered by the high-

est court of a State in which a decision could be had,

may be reviewed by the Supreme Court as follows:

(1) By appeal, where is drawn in question the

validity of a treaty or statute of the United States

and the decision is against its validity.

(2) By appeal, where is drawn in question the

validity of a statute of any state on the ground of its

being repugnant to the Constitution, treaties or laws

of the United States, and the decision is in favor of

its validity.

(3) By writ of certiorari, where the validity of

a treaty or statute of the United States is drawn in

question or where the validity of a State statute is

drawn in question on the ground of its being repugnant

to the Constitution, treaties or laws of the United

States, or where any title, right, privilege or immunity

is specially set up or claimed under the Constitution,

treaties or statutes of, or commission held or authority

exercised under, the United States.