Petition — Margoles v. Tormey

Supreme Court brief1981

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" 80-1734 [> apr iste:

| Office: Supreme Court, U.S

ALEXANDER i. STEVAS,

_ .

No.

In Tue

Supreme Court of the Anited States

Ocroszr Term, 1980

DR. MILTON MARGOLES,

Petitioner,

VB.

DR. THOMAS W. TORMEY, JR.

and LEROY L. DALTON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

DAN WALKER

DAN WALKER, JR.

DAN WALKER LAW OFFICES

1211 W. 22nd St., #616

Oak Brook, Ill. 60521

312/920-1105

Attorneys for Petitioner

April 14, 1981

iE ———

{

}

QUESTIONS PRESENTED

The Questions Presented are all

against the factual background which

includes two key elements found by the

jury under special interrogatories and

not overturned by the Seventh Circuit:

--+ Knowing dissemination by Defen-

dants (medical licensing officials of

Wisconsin) of false information, in bad

faith, about Plaintiff to Illinois medi-

cal licensing authorities, and

ees Consequent denial of a medical

license to Plaintiff by the Illinois

authorities and, a fortiori, denial of

medical employment opportunities.

The First Question

To establish a claim under 42

BSe a §1983 based on "interstate"

denial of a fair hearing, must Plaintiff

prove that the officials of one state

(where the wrongful conduct originated)

att

engaged in “collusion, conspiracy, or

agreement" with the officials of another

state (where the effect of the conduct

was felt), or is some lesser degree of

interstate official involvement suffi-

cient?

The Second Question

Did the Seventh Circuit misapply

two key civil rights decisions of this

Court (Paul v. Davis, 424 U.S. 693,

(1976) and Board of Regents v.-Roth, 408

U.S. 564, (1972)) in holding that denial

of medical licensure in Illinois caused

by dissemination of false information by

Wiscon.in officials acting in bad faith

does not meet the so-called "stigma

plus" teat imposed by those two deci-

sions??

lsubsidiary Questions Involving

Related issues; Additional Parties:

Should the Court deem the two questions

-iii-

(footnote #1 continued)

above as worthy of granting a Writ of

Certiorari, Petition suggests several

subsidiary questions involved in the

resolution of this case by the District

Court but not addressed by the Seventh

Circuit (Appendix A-13, n. 12):

3. Did the District Court err in

requiring Plaintiff-Petitioner to prove

that wrongful interference by Defendant

officials of the Wisconsin State Board

of Medical Examiners was the substantial

cause of denial of licensure’ and

employment in other state, instead of

that it occurred in connection with or

was "reasonably § related to, the

alteration of the right or interest?"

(cf: Marrero v. City of Hialeah, 625

F.2d 499, 518 (5th Cir., 1980), quoting

Owen v. City of Independence, 100 S.Ct.

1398, 1406 n. 13 (1 )

4. Are the Defendants entitled to

the protection of res judicata regarding

Counts I and IV as held by District

Judges Crabb and Morgan? (See A-21, 23,

65-69; In the first of two decisions in

this case, the Seventh Circuit affirmed

the application of res judicata te Count

IV. (A-31)) This could involve rein-

stating Defendants Donald Pressentin,

board investigator; and board members

Drs. F.A. Ross, Thomas E. Henney,

Robert G. Zach, G. Stanley Custer, John

J. Satory, David J. ‘Twohig, H.G.

Withrow, and Benjamin Lawton.

TABLE OF CONTENTS

Questions Presented..cceeeceveceeve i

Opinions Below. ..ccccccceevcccevves

JULISGICCION. cc cceeccecescevcesecce

Statutory Provisions Involved......

Statement of the CaS€..cceeveceeees

The Key FactS cccccccccccccccccee

ce teh. ar. -O.-Rx

Factual Background. ..ccceccvvecees

The Proceedings in the

Courts PTO st c¢ewecee 66 086 eee 14

Reasons for Granting the Writ...... 17

The Seventh Circuit Decision.... 17

The Interstate Fair Hearing

THEOLY. cccccccescveseeesesesvese 20

The "Stigma Plus" Theory....eee. 27

COMOGELUBREON s oS bie ce ctidbiecbeetoececcsece 35

°°.

-V—-

TABLE OF CONTENTS

Appendix A:

March 12, 1981, Order and Judg-

ment of the Court of Appeals

(Judgment notwithstanding the

PREECE) 0 0 0s pie se OES 6 bd bb es tea nel

January 10, 1980, Order and Judg-

ment of the District Court

(Judgment notwithtanding the

WOUMEMET & 6b ce bebdtececbosueceskh™as

August 15, 1978, Order and Judg-

ment of the Court of Appeals

(summary SOGUUNC) Soc oea ob anc scalar

September 7, 1978, Amended Order

of the Court of Appeals

(summary SUGUOUE } se <'c cbe.p 0 ces» belo

February 23, 1978, Order and

Judgment of the District

(Defendants' second motion

for summary judgment)......++++sA-32

July 25, 1975, Order and Judg-

ment of the District Court

(Defendants' first motion

for summary judgment).........+-eA-50

TABLE OF AUTHORITIES

Page

Board of Regents v. Roth, 408 U.S.

564 (IS72) severe Ti ,18, 27,30,32, 34

Clark v. Mann, 562 F.2d 1104

(8th Cire, LD Cid 068 0.6 ate bie es 31

Davis v. Knud-Hansen Memorial

Hospital, 635 F.2d 179 (3rd

Cit os POOP Airs 8 6 ok ¥ se eka Sia oe 23

Ledford v. Delancey, 612 F.2d 883

(4th LAL es 1 @eeee<«eee*e3e8e5¢e#ee#ne#e3##e#e?e 31

Marrero v. City of Hialeah, 625 F.2d

499 (5th Cir., 1980)......iii,23,31

Mazaleski v. Treusdell,

See Bete ten (iets Cites, 1977).- 3)

Monroe v. Pape, 365 U.S. 167

LIGA Pwedocctveccetedececwoceccece 23

Morrison v. Jones, 607 F.2d 1269,

(9th af Te SEP ss bows sé obs 0 25

Owen v. City of pndepencence

100 ince « 9 ( te wale beg ee OOD

Paul v. Davis, 424 U.S. 693 (1976)

<n ie ew eee 6000 ebb obese alesse sabat

Ventetuolo v. Burke, 596 F.2d 476

(lst 5 er ERT EL cu kottas ss cbeeueea

ote

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner seeks a Writ of

Cert‘orari to review the judgment of the

United States Court of Appeals for the

Seventh Circuit in this case.

OPINIONS BELOW

All of the opinions below are

attached hereto in Appendix A. No peti-

tion for rehearing was filed with

respect to the March 12, 1981, opinion

of the United States Court of Appeals

for the Seventh Circuit, affirming judg-

ment notwithstanding ‘the verdict.

Plaintiff-Petitioner had appealed from

the order and judgment of January 10,

1980, of the District Court for the Wes-

tern District of Wisconsin, which gran-

ted judgment notwithstanding the ver-

dict. (The opinion is unreported.)

-2-

Also reproduced in Appendix A are

the July 25, 1975, order of the District

Court partially granting Defendants'

first motion for summary judgment

(reported at 67 F.R.D. 666, 1975), and

the February 23, 1978, order of the Dis-

trict Court granting Defendants' second

motion for summary judgment (reported at

446 F.Supp. 959, 1978), and the unre-

ported August 15, 1978, opinion of the

Seventh Circuit partially reversing the

order which had granted the motion for

summary judgment.

JURISDICTION

The final judgment of the Court of

Appeals in this case was entered on

March 12, 1981. The jurisdiction of

this Court is invoked pursuant to 28

U.S.C. §1254 (1).

STATUTORY PROVISION INVOLVED

42 U.S.C. $1983 -- Civil action for

deprivation of rights:

"Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or Terri-

tory, subjects, or causes to be sub-

jected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any

rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in

an action at law, suit in equity, or

other proper proceeding for redress."

a o

STATEMENT OF THE CASE

The Key Facts

This case can be resolved on a very

few key facts:

Defendants, Wisconsin medical

licensing officials, maliciously or in

bad faith, supplied false information

about Plaintiff, to the Illinois medical

licensing authorities at the time Plain-

tiff's application for a license was

pending. The jury found this to be a

fact and the Seventh Circuit assumed

that it was proven.

2. The false information was the

substantial factor in causing’ the

Illinois authorities to deny medical

licensure to Plaintiff in 1969. This,

too, was found by the jury to have been

established at the trial. (Answer to

special interrogatory 7)

aha

Strangely, this second fact is

mentioned nowhere in the Seventh Circuit

Circuit's decision, although it is the

key to the violation of Plaintiff's

constitutional rights.

Factual Background

The case involves Dr. Milton

Margoles' attempts from 1964 to 1970 to

obtain licensure and to practice

medicine in Wisconsin and other states. |

Defendant Dr. Thomas W. Tormey, Jr. was

a member and secretary of the Wisconsin

State Board of Medical Excminers from

1954 to 1973. During that time, he was

responsible for communications from the

Board to officials in other states.

(Transcript Vol. III-p. 90) Defendant

LeRoy L. Dalton was counsel for the

Board from 1968 to 1970. (Tr. III-p.

145) The Board is_ responsible for

-6-

licensing of physicians in the state of >

Wisconsin. Revocations and relicensing

during all relevant times were performed

by the Circuit courts acting on the

os Board's recommendations.

In 1963, the Circuit Court for

Milwaukee County revoked Dr. Margoles'

license, upon recommendation of the

Board. This action was based on his

conviction for violation of the U.S.

Internal Revenue Code. Dr. Margoles

also had been charged with attempting to

bribe a judge, but he was acquitted of

this charge; he was, however, convicted

**?.

of lesser charges of attempting to

obstruct justice and influence an

éstine: of the court, and communicating

with a juror. (Tr. IA-pp. 6-7; IB-pp.

9, 33) (He received a full Presidential

Pardon in 1972.) After Dr. Margoles had

| | E

an,

served his sentence, the Medical Board

held two formal hearings (in 1965 and

1969) on his petitions for reinstate-

ment. The Board voted twice to deny

licensure.

By 1967, a number of other states

and the District of Columbia were grant-

ing medical licensure to Dr. Margoles

notwithstanding Wisconsin's refusal to

reinstate him. (The other license he

held before 1960, in California, which

also haw been’ rescinded following

Wisconsin's action, was’ restored in

1969.) He wanted to accept one of

several job opportunities in Illinois,

but the Illinois Medical Examining

Committee previously had taken the posi-

tion that it would not approve his

application until his Wisconsin license

was reinstated.

-8-

In 1967, the Wisconsin Board

suggested that Dr. Margoles supply an

affidavit stating that if he were grant-

ed a Wisconsin license, he would not

practice in Wisconsin but would use it

only to meet ey requirements of

Illinois. (Tr. IB-p. 38; II-pp. 187 et

seq.) The affidavit subsequently was

submitted. Dr. Tormey then wrote a

letter in August, 1967, to the Circuit

Court in Milwaukee, castigating Dr.

Margoles for originating the affidavit

idea and recommending denial of relicen-

sure on this basis. (Plaintiff's

Exhibit 37) Dr. Tormey sent this letter

to the Illinois authorities and, as a

result, licensure was not granted in

Illinois in 1967. (Tr. II-pp. 187,

190-191) Perry Margoles, the Doctor's

-9-

son, later told Dr. Tormey of his con-

sternation about the affidavit issue and

reminded Dr. Tormey that the affidavit

had been Dr. Tormey's suggestion. (Tr.

II-p. 189; III-pp. 14-15)

In 1969, Dr. Margoles again was

seeking licensure in Illinois. In an

effort to break the impasse with the

Illinois Board, Perry Margoles met with

Dr. Tormey and asked him to set the

record straight by writing a letter con-

firming that the affidavit idea had

Originated with the Wisconsin Board.

(Tr. II-p. 191) Dr. Tormey wrote and

signed a letter to that effect. (Tr.

II-pp. 191-192; Pl. Exh. 39)

Dr. Tormey met shortly thereafter

with the Wisconsin Board's counsel,

Defendant LeRoy L. Dalton, and working

-10-

together, they wrote and sent a letter

(signed by Dr. Tormey) contradicting the

earlier letter and stating that’ the

affidavit had been first suggested by

Dr. Margoles and not by the Board. (Pi.

Exh. 40) They enclosed the Board's 1967

letter to the Circuit Court which sever-

ely criticized Dr. Margoles for. the

affidavit, describing it as placing in

doubt his “moral and professional char-

acter." (Tr. IV-pp. 133-134). Dr.

Tormey never informed ei Margoles of

this second letter and did not send him

a copy.

When Dr. Margoles and Perry met a

few days later with the Iliinois licen-

sing authorities, they were confronted

with the surprising second Tormey

letter. The chairman, Dr. Kenneth

-ll-

Schnepp, held it up, said that Dr.

Margoles had lied about the affidavit

issue, and concluded that because Dr.

Margoles was not credible an Illinois

license would be denied. (Te. II-p.

195) Dr. Schnepp later wrote a letter

indicating that’ the affidavit issue was

the primary basis for denying licensure

to Dr. Margoles. (Pl. Exh. 43) Dr.

Schnepp's deposition testimony was read

into evidence. He testified that

several factors were involved in the

Illinois decision to deny licensure, one

of which was the affidavit issue. (Tr.

IIlI-pp. 48, 54, 56) (Ultimately, the

Illinois Board approved Dr. Margoles'

aiinitcation a year later.)

At the trial of this case, these

are the special verdict questions that

**.

ay iy Pe

the jury answered regarding the "affi-

davit" issue (Record Doc. #128):

"Did the defendant Thomas Tormey,

Jr. violate the plaintiff's constitu-

tional right to obtain a fair hearing on

his application for medical licensure in

the State of Illinois by his act of

sending a letter dated September 24,

1969, to Kenneth Schnepp, Chairman of

the Medical Board of Illinois, which is

plaintizf's exhibit 40? Answer: Yes.

In sending the letter dated

September 24, 1969, (plaintiff's exhibit

40) was defendant Thomas Tormey, Jr.

acting in bad faith or without a reason-

able belief that his act was constitu-

tional? Answer: Yes.

Did the defendant LeRoy Dalton

draft the letter sent by defendant

Tormey to Kenneth P. Schnepp on

September 24, 1969, which is plaintiff's

exhibit 40? Answer: Yes.

Did the defendant LeRoy Dalton

violate the plaintiff's constitutional

right to obtain a fair hearing on his

application for medical licensure in the

State of Illinois by his act of drafting

a letter dated September 24, 1969, to

Kenneth Schnepp, Chairman of the Medical

Board of Illinois, which is plaintiff's

exhibit 40? Answer: Yes.

In drafting the letter dated

September 24, 1969, (plaintiff's exhibit

40) was defendant LeRoy Dalton acting in

bad faith or without a reasonable belief

that this act was constitutional?

Answer: Yes."

Following are the instructions

given by the District Court with respect

to these questions (Record Doc. #129):

"In order to find that Defendant

Tormey violated plaintiff's constitu-

tional right to a fair hearing, you must

find a reasonable certainty by the

greater weight of the credible evidence

7 FIRST: that defendant Tormey wrote

and sent the letter with the knowledge

that the statement about the origin of

the affidavit idea was false; and

SECOND: that defendant Tormey

wrote and sent the letter with the

intent to prevent plaintiff from obtain-

ing a fair hearing on his application

for medical licensure in the State of

Illinois; and

THIRD: that the, false statement

in the letter was the substantial factor

preventing plaintiff from obtaining a

fair hearing in 1969 on his application

for medical licensure in the State of

Illinois." (Trial Transcript Vol. V-pp.

134-135)

-14-

The same instructions were repeated

with respect to Dalton, with the follow-

ing instruction added: |

"Question no. 5 asks you to find

whether defendant Dalton drafted the

September 24, 1969, letter which is

plaintiff's exhibit no. 40. In order to

answer this question "yes", you must

find to a reasonable certainty by the

greater weight of the credible evidence

that defendant Dalton composed, sugges-

ted, or wrote substantially all of the

material portions of the letter."

The Proceedings in the Courts Below

Shortly after this case was

commenced, the District Court denied a

motion to dismiss against officials of

the Wisconsin medical board, but granted

it as to the board as an entity.

Several months before trial was to

be held in 1975, Defendants-Respondents

filed their first motion for summary

judgment. Count I (interstate Civil

Rights violation) survived as to the

-15-

board secretary and counsel. Count II

(conspiracy) was’ struck. Count III

(slander by the board chairman) sur-

vived. Count IV (denial of Civil Rights

in Wisconsin) was dismissed on_ the

ground of res judicata (A-50, 69-70).

The District Court refused to certify

the issues for interlocutory appeal.

in» 1977, Defendants brought a

second motion for summary judgment. On

the basis of qualified immunity as to

Count I and absolute immunity as_ to

Count III, the rest of the case was dis-

missed. (A-32, 49) On appeal, Count I

only was reinstated by the Seventh Cir-

cuit as to the board secretary (Dr.

Tormey), counsel (Dalton), and investi-

gator (Donald Pressentin). (A-27,

30-32)

-~16-

Trial finally occurred at the end

of 1979. At the conclusion of the Peti-

tioner's case, the District Court dis-

missed Pressentin from the case. The

jury found that the board secretary and

counsel had violated Petitioner's civil

rights in 1969 in conjunction with the

denial of his application for Illinois

medical licensure. It found that the

secretary had not done so in 1964.

Before the jury was to consider damages,

the District Court granted Defendants'

motion for judgment notwithstanding the

verdict. (A-15, 26) The Court of

Appeals for the Seventh Circuit

affirmed. (A-l, 13)

Petitioner seeks reinstatement of

Count I (interstate) as to board secre-

tary Dr. Tormey and counsel Dalton, and

Count IV (intrastate) as to all of the

Original Defendants.

an) Fas

REASONS FOR GRANTING THE WRIT

The tortuous path this

case has taken and the diffi-

culty we shall point out in

analyzing the Seventh Cir-

cuit's decision, stem in great

part from the fact that the

law is so unclear in a §1983

case involving defamation

causing loss of future employ-

ment opportunities and even

more unclear where the defama-

tion involves government offi-

cials in two states.

The Seventh Circuit Decision

The Seventh Circuit properly held

that Plaintiff “has a protected liberty

interest in pursuing his profession" and

that “if Plaintiff can establish that

Defendants, under the color of law, have

interfered with that right and are not

protected by qualified immunity, he has

established a claim cognizable under 42

U.S.C. §1983." (A-8)

The Seventh Circuit states--

correctly--that there is no claim here

that the Illinois authorities violated

-18-

Plaintiff's constitutional rights. (A-8) .

It then goes on to discuss, separately,

two theories: (1) whether there was an

unconstitutional interference by the

‘

Wisconsin officials with Plaintiff's

right to a fair hearing in Illinois, and

(2) whether there was defamation in con-

juncton with the denial of a constitu-

tionally protected privilege in

Illinois, i.e., medical licensure. The

latter theory is analyzed as_ stemming

° from defamation coupled with loss of a

constitutionally protected right--the

"stigma plus" test of Paul v. Davis, 424

U.S. 693 (1976), and Board of Regents v.

Roth, 408 U.S. 564 (1972).

We have difficulty in perceiving

any difference of real substance between

the two theories in the context of the

-19-

of this case, but because the question

in this petition relates to the effect

of the Seventh Circuit's decision on

other cases and other courts, we shall

discuss the two theories separately just

as other courts may consider them separ-

ately. For convenience, we shall call

the first theory the “interstate fair

hearing" theory, and the second the

"stigma plus" theory.

-20-

The Interstate Fair Hearing Theory

This Court's guidance

is needed on the novel ques-

tion whether, in a 1983

interstate defamation case,

the person who has_ lost

employment opportunities must

prove collusion, conspiracy,

or agreement between the offi-

cials of the respective states

and, if not, what the correct

test should “be.”

In its short and, we believe, quite

confusing discussion of the “fair hear-

ing" problem, the Seventh Circuit first

poses it as involving a claim based on

Defendants' “active involvement in and

distortion of" the Illinois licensing

proceedings:

"It would be a significantly

different case if there were

some evidence of collusion,

conspiracy, or agreement be-

tween the government officals

involved...Lacking such evi-

dence in this case, we must

conclude that Plaintiff failed

to establish an constitutional

deprivation as ae result of

Defendants' limited involve-

ment in the Illinois proceed-

ings." (A-9)

Ny) ee

It is this language which led Cir-

cuit Judge Cudahy, concurring, to state:

"I concur in the reasoning and

result of the majority opinion

except to the extent that it

may suggest that "collusion,

conspiracy, or agreement be-

tween the government officials

involved" would be requisite

to a successful Section 1983

claim based on an "interstate"

denial of a fair hearing."

(A-14)

Judge Cudahy expresses the _ fear

that in an interstate situation this

theory could allow state boundaries to

provide an improper "shield" against

constitutional tort liability.

Consider the case where a sheriff

wrongfully shoots a person across a

state line--or where a stream deliber-

ately polluted flows from one state into

another state. Does the state line in

such cases (and this case) create a

different test or a lesser degree of

liability?

a22=

In a situation such as the jury

found here--where the Wisconsin medical

board officials, acting in bad faith,

disseminated false information which had

the effect of poisoning the minds of

Illinois medical board officials against

Petitioner--to require "collusion,

conspiracy, Or agreement" on the part of

the recipients in addition to the bad

faith of the senders--is to effectively

abrogate the viability of §1983 in a

major context in which interstate civil

rights violations involving defamation

may occur. As such, if this is the

rationale of the Seventh Circuit, it is

discordant with the view of this Court

that actions under §1983 "should be read

against the background of tort liability

that makes a man responsible for the

natural consequences of his actions."

Monroe v. Pape, 365 U.S. 167, 187

(1961). CF: Marrero v. City of Hialeah,

625 F.2d 499, n. 23 at 516 (5th Cir.,

1980); Davis v. Knud-Hansen Memorial

Hospital, 635 F.2d 179, 185 (3rd Cir.,

1980)

This is a significant constitu-

tional question of first impression to

this Court. Indeed, it is the inter-

state acpect of this case that _ so

troubled District Judge Crabb that she

reversed herself on the law between her

pre-trial order and her order granting

judgment n.o.v. (See A-16-17, 21-22)

In an interstate case, is the stan-

dard “collusion, conspiracy, or agree-

ment between the officials involved?"

If some lesser standard is appropriate,

-24-

what is it? We emphasize, again, that

the jury found that the Illinois author-

ities denied licensure to Petitioner

because of the Defendants' actions. We

remain totally mystified as to why this

is not an “active involvement in or dis-

tortion of the Illinois proceedings."

The Seventh Circuit does not clear-

ly answer these questions, and this is

certain to cause confusion whenever this

issue arises in the federal system and

could effectively deny §1983 recourse

where the effects of wrongful acts under

color of law occur in another state.

It is worth noting in this connec-

tion that 42 U.S.C. §1983 expressly

retece to state action against an

individual which "subjects" him _ or

"causes" him to be subjected to a

deprivation of civil rights. (emphasis

in 25a

added) (Cf: Morrison v. Jones, 607 F.2d

1269, 1275 (9th Cir., 1979)) In other

words, if one person harms’7 another

(e.g., physically), there is a direct

“a deprivation. But there can also be a

deprivation where one person causes ano-

ther to lose his constitutional rights.

That is precisely the case here.

By raising this element of causa-

tion (the Wisconsin officials causing

the denial of Illinois licensure) we are

not trying to argue the merits of the

case. Rather, we raise the question as

to how another court can obtain any gui-

dance from the Seventh Circuit's deci-

sion as to what degree of proof is nece-

deary to establish an unconstitutional

interstate interference in an interstate

professional licensing situation.

-26-

What proof could there be that

would be (a) less than "collusion, con-

spiracy or agreement between the govern-

ment officials involved," and (b) more

than denial of licensure by one set of

officials because of the actions of the

other set of officials?

We submit that the Seventh Cir-

cuit's treatment of the issue is certain

to cause confusion in other federal

courts just as it did Circuit Judge

Cudahy in his concurring opinion. It

may also defeat the broad civil rights

protection which §1983 was intended to

provide, simply because the action

occurred in an interstate setting.

Removing the possibility of confu-

sion and preventing undue limitation of

§1983 rights surely are reason for this

Court to grant the Writ of Certiorari.

att=

The "Stigma Plus" Theory

The problem here is

that the Seventh Circuit has

misapplied two key decisions

of this Court.

The Seventh Circuit discusses what

it calls the “remaining issue" ‘infter

disposing of the “interstate fair hear-

ing" theory discussed above:

"The remaining issue is

whether Plaintiff has estab-

lished a denial of any consti-

tutionally protected liberty

interest by proof that Defen-

dant officials knowingly and

maliciously supplied damaging

false information about Plain-

tiff to the authorities of

another government entity that

was considering Plaintiff's

application for professional

licensure." (A-9)

The Seventh Circuit proceeds to

apply the "stigma plus" test of Paul v.

Davis, 424 U.S. 693 (1976) and Board of

Regents v. Roth, 408 U.S. 564 (1972),

and concludes that Plaintiff established

‘yy

-28-

the “stigma” but not the "plus":

"Plaintiff's claim fails

to establish that Defendants'

defamation was “in conjunc-

tion" with the denials of

licensure in Illinois."

(A-13; emphasis is the

court's.)

First, as noted earlier, we remain

puzzled as to the distinction between

the Seventh Circuit's “interstate fair

hearing" theory (was there an active

involvement in or distortion of the

Illinois proceedings by the Wisconsin

officials and, if so, is that a denial

of Plaintiff's constitutional rights)

Sna the "stigma plus" theory (was the

defamation "in conjunction" with the

denial of licensure in I}blinois). At

least | arguably, these are merely

different ways to state the same issue-

-did the Wisconsin-originated defamation

introduced into the Illinois proceedings

/ —29—

prevent Plaintiff from practicing his

profession in Illinois? If so, there

was interference with a fair hearing

right in Illinois and an interference

with Plaintiff's constitutionally pro- -

tected liberty interest in practicing

his profession?

Again, we encounter that key fact

found by the jury and totally ignored by

the Seventh Circuit--that Illinois

denial of licensure was caused by the

defamation. In view of this, it passes

understanding how the Seventh Circuit

could conclude that the defamation was

not "in conjunction with the denial of

licensure in Illinois." (A-13)

We ‘Paleo this point not to argue

the factual merits of the case, but to

emphasize the legal problem. If this

proof does not’ satisfy the "plus"

‘\

*,.

-30=

portion of the "stigma plus" test of

Paul v. Davis and Board of Regents v.

Roth in an interstate case, what can?

We suggest these two aspects of the

Seventh Circuit decision:

1. The Seventh Circuit has imposed

a stricter test on the "plus" portion of

the "stigma plus" test than this Court

has intended and other circuits have

utilized; and

2. There will inevitably be confu-

sion in other courts as to what standard

to apply under Paul v. Davis and Roth in

a case involving defamation in an inter-

state setting leading to loss of profes-

sional licensing and employment oppor-

bunttios.

Repeatedly, other circuits have

indicated that governmental defamation

leading to loss of employment would be

= Za

sufficient to support a claim of denial

of constitutional rights:

First Circuit in Ventetuolo v.

Burke, 596 F.2d 476, 482-483,

1979;

Fourth Circuit in Ledford v.

pesencey 612 F.2d 883, 886-

’ 0;

Fifth Circuit in Marrero v.

City of Hialeah, 625 F.2a 499,

’ ;

Eighth Circuit in Clark v.

Mann, 562 F.2d 1104, 1116,

; and

District of Columbia Circuit

in Mazaleski v. Treusdell, 562

F.2d 701, 712-713, 1977.

It is difficult to see any legal

difference between defamation affecting

employment as suggested in the above-

cited cases and defamation affecting

employement as involved in this case

where the Seventh Circuit has held that

defamation leading to loss of licensure

and employment opportunity in an

*.%

-32-

interstate setting is not sufficient to

support a finding of denial of constitu-

tional rights. One of two conclusions

must inevitably follow:

1. The Seventh Circuit decision is

in conflict with the criteria recognized

by other circuits, or |

2. The Seventh Cheouit decision

can be distinguished because of the

interstate setting.

Either of these two conclusions is,

we submit, sufficient to warrant the

granting of the Writ of Certiorari.

Conflict is a clear ground for the Writ.

A conclusion that the test of Paul v.

Davis and Roth varies with an interstate

setting raises a very substantial and

important issue of constitutional law,

and this also is clear ground for issu-

ing the Writ.

7 =

The dilemma in trying to interpret

the Seventh Circuit's decision cannot,

we submit, be avoided by disputing the

facts. The Seventh Circuit states in

conclusion, quite erroneously, that

"Plaintiff's claim is reduced to an

allegation that these Defendants made

defamatory statements about Plaintiff to

the Illinois licensing authorities."

(A-13) Again, the Seventh Circuit dons

the blinders, as they did throughout

their decision.

Plaintiff's claim is that Defen-

dants made defamatory statements about

Plaintiff to the Illinois’ licensing

authorities and that as a result medical

licensure was denied in Illinois.

The latter is the element that

inevitably will lead to confusion in an

-34-

important area of federal constitutional

law. Nowhere does the Seventh Circuit

decide that this key element was not

properly found by the jury. Therefore,

for purposes of analyzing the Seventh

Circuit decision, we must take it as

holding that:

l. Where defamatory statements

were made by officials of one state to

officials of another state, and

2. Where those statements lead

directly to a denial of professional

licensure,

3. There is no denial of a consti-

tutional right. To repeat, this is

either a flat repudiation of Roth and

Paul v. Davis or, atthe least, it will

lead certainly to confusion in applying

the test of these cases in an interstate

setting.

=350

CONCLUSION

For all the reasons set forth

above, we respectfully submit that this

is a case of such importance as_ to

warrant the granting of a Writ of

Certiorari to the United States Court of

Appeals for the Seventh Circuit.

Respectfully submitted,

Dan Walker

Dan Walker, Jr.

Attorneys for Petitioner

Dan Walker Law Offices

1211 West 22nd Street

Suite 616

Oak Brook, IL 60521

312/920-1105

| Ae-l

In the .

United States Court of Appeals

Hor the Seventh Cirruit

No. 80-1176

DR. MILTON MARGOLEs,

Plaintiff-Appellant,

Dr. THOMAS W. TORMEY, JR. and LeRoy L. DALTON,

4 Defendants-A ppellees.

Appeal from the United States District Court for

the Western District of Wisconsin.

No. 70 C 151—Barbara B. Crabb, Judge.

ARGUED JANUARY 21, 1981—DECIDED MARCH 12, 1981

Before SPRECHER and CUDAHY, Circuit Judges, and

SPEARS, Senior District Judge.*

SPRECHER, Circuit Judge. This i presents the

question of whether the officials of one state have

_ violated the constitutional rights of an applicant for

medical licensure in another state by knowingly

providing allegedly false information about the appli-

cant to the licensing authorities of the second state.

Plaintiff, Dr. Milton Margoles, appeals from the judg-

ment of the district court awarding age gy

notwithstanding the verdict to defendants. We rm.

* _ Honorable Adrian A. Spears, Senior District Judge for the

Western District of Texas, is sitting by designation.

A-2 No. 80-1176

For many years prior to 1962, plaintiff was licensed as

a physician in Wisconsin and in several other states; he

racticed medicine primarily in Milwaukee, Wisconsin.

n June, 1960, plaintiff was convicted of several viola-

tions of the Internal Revenue Code and was sentenced

to serve one year in prison and to pay $15,000 in fines.

On October 12, 1960, plaintiff was convicted of at-

tempting to influence an officer of the court and to

obstruct justice and was sentenced to serve five years in

prison and to pay $5,000 in fines. Plaintiff also was ac-

quitted of a charge of attempted bribery. On June 6,

1961, plaintiff was convicted of communicating with a

juror and was sentenced to serve six months in prison

and to pay $1,000 in fines. .

Pursuant to an action commenced by the state distric

attorney, and pursuant to a recommendation of the

Wisconsin State Board of Medical Examiners (“Board”),

laintiff’s license to practice medicine and surgery in

isconsin was revoked on February 26, 1962 by the Cir-

cuit Court of Milwaukee County.! Following plaintiff's |

convictions and the revocation of his Wisconsin license,

his physician’s licenses in other states also were revoked

or suspended by those states. Plaintiff was released from

- prison on parole on September 15, 1962. His parole term

expired in September, 1966.

Following plaintiff's release from prison, plaintiff

commenced an unsuccessful — to regain his

Wisconsin medical license. Formal hearings were held

in 1965 and 1969 by the Wisconsin State Board of

Medical Examiners on plaintiff's i er nog for

relicensure, both resulting in recommendations by the

Board that plaintiff be denied relicensure. The latter

denial of licensure was upheld by the Wisconsin

Supreme Court. Margoles v. State Board of Medical Ex-

1 In Wisconsin, revocation of medical licenses is performed

the circuit court. Wis. Stat, § 448.18(2) ne licensure

also is accomplished by the circuit court, but only upon the

Gon recommendation of the Board. Wis. Stat. § 448.18(4)

‘\

No. 80-1176 A-3

aminers, 47 Wis.2d 449, 177 N.W.2d 353 (1970). Plaintiff

also sought, with mixed results,? licensure in other

states, including Illinois.

This suit concerns plaintiff's attempts in 1964-65 and

in 1969 to gain licensure in Illinois. This case, originally

filed on June 11, 1970, has taken a tortuous route,’

culminating in a five day jury trial in December, 1979

before Judge Crabb of the United States District Court

for the Western District of Wisconsin. The defendants

2. he record is somewhat unclear, but it appears that plain-

tiff has been panes licenses in California, the District of

Columbia, Indiana, Michigan, New Jersey and Vermont.

After the filing of the original complaint in this suit in 1970,

laintiff was granted a license by the State of Illinois. But,

e current status of that license apparently is contested as a

result of events unrelated to this proceeding.

’ This suit originally was in four counts against numerous

defendants who were members of or connected with the

Board. On July 25, 1975, Judge Morgan, then presiding over

this case, granted summary judgment in favor of all defen-

dants as to counts two, three, and four. With respect to count

one, Judge Morgan granted summary judgment to all defen-

dants except the defendants here, Dr. Thomas W. Tormey, Jr.

and LeRoy L. Dalton. Margoles v. Ross, 67 F.R.D. 666

(W.D.Wis. 1975).

Subsequently, on February 23, 1978, Judge Morgan granted

ney prcemens to the remaining defendants on the

unds o

ard of Medical Examiners, 446 F.Sup

qualified official immunity. ee v. State

isva} } p. 959 (W.D.Wis.

_ On appeal to this court, we reversed the preet of summary

judgment based on qualified immunity. We held that there

were triable issues of fact concerning the defendants’ good

faith. We also affirmed the award of summ Judgment as to

the other defendants and the other counts. Margoles v. Ross,

No. 78-1354 (7th Cir. Unpublished Order Aug. 15, 1978).

When the case finally went to trial it involved Tormey,

Dalton, and a third defendant, Donald Pressentin. Pressentin

earlier had been dismissed on the basis of the first summary

judgment decision, but later was reinstated. At the close of

seo’ case, the district court granted a directed verdict in

oo e _Pressentin. Plaintiff does not contest the propriety of

action.

A-4 No. 80-1176

before us now are Dr. Thomas W. Tormey, Jr. and

LeRoy L. Dalton, individually and in their official

capacities. Tormey served as a member and Secretary of

the Board from July, 1953 through July, 1963, and from

July 1965 through July, 1973. He was employed by the’

Board as Executive Secretary from July, 1963 through

July, 1965. Throughout this period, Tormey was respon-

sible for handling the correspondence of the Board.

Defendant Dalton was employed since 1955 as an assis-

tant attorney general for the State of Wisconsin. Dalton

acted as counsel to the Board from June, 1968 through

1970. The Board is responsible for licensing physicians

in Wisconsin. It also regularly corresponds with licen-

sing authorities of other states regarding either

applicants before the Board or applicants seeking licen-

sure in another state who have some connection to the

Wisconsin Board. This suit concerns correspondence by

the Board or by Tormey to Illinois licensing authorities

a the time plaintiff was seeking licensure in II-

inois. 3

In a pre-trial order entered on December 17, 1979,

Judge Crabb ruled that plaintiff would be entitled to

relief under 42 U.S.C. § 1983 if he proved that “defen-

dants, acting under color of state law, and acting from

motives of malice, ill will, or vindictiveness, prevented

or attempted to prevent him from pursuing his profes-

sion.” No. 70-C-151, Mem. Op. at 3. Judge Crabb rea-

soned that plaintiff’s “‘liberty’ interest would seem to en-

compass having a fair chance to apply, pursue, or com-

pete for employment opportunities without intentional,

malicious interference by state officials.” Mem. Op. at 3-

4. But Judge Crabb warned that plaintiff would have to

prove “defendants’ active involvement in or distortion of

rita a procedures” of the other states. Mem. Op.

at 4.

Plaintiff's case, as finally presented to the jury, con-

cerned only incidents in 1964 and 1969. The 1964 matter

involved an unsolicited letter sent by hgh on behalf

of the Board to the Illinois licensing authorities re-

questing information about plaintiff's attempts to be

licensed in Illinois. The letter incorrectly stated that

No. 80-1176 Mee

plaintiff had been convicted of attempting to bribe a

judge, when, in fact, plaintiff had been acquitted of that

charge and had been convicted of the lesser charge of

attempting to influence an officer of the court and to

obstruct justice. ry to plaintiff, when he

appeared before the Illinois licensing board, the board’s

chairman confronted plaintiff with Tormey’s letter and

accused plaintiff of lying to the Illinois authorities by

not disclosing his conviction for attempted bribery.

Plaintiff contends that this incident severely prejudiced

plaintiff’s credibility before the Illinois authorities and

was instrumental in denial of licensure.

Plaintiff and his son testified that they had met with

Tormey some time prior to the date of this letter and .

had requested that Tormey stop stating that plaintiff

been convicted of attempted bribery. Tormey

testified that the mistake was inadvertent—that he did

not understand or appreciate the legal distinction

between attempt to bribe a judge and attempt to in-

fluence an officer of the court and to obstruct justice.

There also was testimony that, after being confronted

with Tormey’s inaccurate letter, plaintiff presented to

the Illinois authorities a certified copy of a statement

from the Clerk of Court stating correctly the charges of

which plaintiff had been convicted.

After the denial of licensure following the 1964-65

events, plaintiff again petitioned the Medical Board of

Illinois for licensure. Hearings were held in September

1969. Shortly before the Illinois hearings, plaintiff and

his son met with Tormey in Tormey’s medical office to

discuss the issue of an affidavit plaintiff had given to the

Board in 1967.4 At this meeting, Tormey agreed to, and

‘ the affidavit stated that if plaintiff were granted a

Wisconsin medical license, “the same will be used merely for

the purpose of securing an Illinois license to practice

medicine, and will'be voluntarily surrendered.”

Although the origin of the pears: included in the affidavit

was and still is hotly disputed, the Board based its 1967

recommendation of licensure denial in large part upon the un-

ethical nature of the idea propounded by the affidavit. The II-

linois authorities subsequently became equally concerned

about the propriety of this affidavit.

A-6 No. 80-1176

did, execute a letter dated September 19, 1969 to the

Medical Board of Illinois stating, inter alia, that the

Board, not plaintiff, hac first suggested that plaintiff

file the affidavit promising not to practice in Wisconsin

if a Wisconsin license were issued and used for purposes

of securing an Illinois license. Tormey gave the letter to

owas or plaintiff's use in the following week’s Il-

inois hearings. :

Before those hearings were held, however, Tormey

reconsidered his statement regarding the origin of the

affidavit idea and concluded that, in fact, plaintiff, not

the Board, sas responsible for the affidavit idea.

Tormey consulted with Dalton, -legal counsel to the

Board, regarding the proper way of correcting the error

contained in the first Tormey letter. Tormey and Dalton

agreed that a second letter to the Illinois authorities cor-

rectly stating Tormey’s view of the 1967 affidavit inci-

dent was necessary.’ Consequently, Tormey prepared a

second letter stating that the affidavit idea originated

with plaintiff or plaintiff's attorney.® This letter, dated

September 24, 1969, was sent directly to the Medical

Board of Illinois. Plaintiff never received a copy of the

letter and was never informed of the corrections made

by Tormey until confronted with the letter by the II-

linois authorities after plaintiff had tendered the first

Tormey letter. Plaintiff again claims that his credibility

before the Illinois authorities was severely prejudiced

and that he again was denied an Illinois license in large

part because of this incident.

_ The case was submitted to the jury with seven special

interrogatories. Interrogatories 1 and 2 asked whether

5 Dalton’s role in preparing this letter is the primary link

between Dalton and any alleged deprivation of plaintiffs con-

stitutional rights. The testimony regarding Dalton’s role was

contradictory and hotly Los gee But, because of our Une gow’

tion of this case on the legal questions presented, we not

discuss or decide the specifics of Dalton’s role. We assume for

puree of this opinion that Dalton actively assisted Tormey

in the preparation of a second letter.

6 Tormey also offered his personal opinion that plaintiff had

offered the affidavit without any intent to deceive the Board.

No. 80-1176 _ A-7

Tormey had violated plaintiff's constitutional right to

obtain a fair hearing in Illinois by sending the 1964

letter misstating plaintiff's convictions, and, if so,

whether Tormey acted in bad faith or without a

reasonable belief that his act was constitutional. The

Jury concluded that the 1964 letter did not violate plain-

tiffs rights and, consequently, did not reach the question

of Tormey’s good faith.

Interrogatories 3 through 7 asked whether the sending

of the second 1969 letter violated plaintiff's right to ob-

tain a fair hearing, whether Dalton participated in the

drafting of this letter, and whether Dalton or Tormey

acted in bad faith or without a reasonable belief that his

act was constitutional. The jury answered all five in-

terrogatories in the affirmative, concluding that plain-

tiffs rights had been violated.

On January 10, 1980, Judge Crabb issued an Opinion

and Order granting defendants’ motion for judgment

notwithstanding the verdict with respect to the 1969 in-

cident. Judge Crabb reasoned that plaintiff's evidence

failed to establish the prerequisites of the constitutional

theory set forth in the pretrial order, and that, as a

matter of law, that constitutional theory was erroneous.

Plaintiff appealed to this Court.

Plaintiff urges upon this Court the legal theory of the

district court’s pretrial order—that plaintiff has a “liber-

ty” interest in “having a fair chance to apply, pursue, or

compete for employment opportunities without inten-

tional, malicious interference by state officials.” Mem.

Op. at 3-4. Plaintiff also accepts the district court’s

reasoning that for plaintiff to prevail on this theory he

must prove “defendants’ active involvement in or distor-

tion of the licensing procedures” of Illinois. Mem. Op. at

4. With regard to the facts of this case, plaintiff argues

that Tormey and Dalton violated plaintiffs con-

stitutional rights by intentionally supplying damaging,

false information to the Illinois licensing authorities.

Plaintiff asserts that the information denied plaintiff a

fair hearing in Illinois and was instrumental in the

denial of plaintiff's application for licensure.

A-8 No. 80-1176

We acknowledge that plaintiff has a protected liberty

interest in pursuing his profession and that Illinois can-

not, on an arbitrary or procedurally unfair basis, pro-

hibit him from practicing his profession. See Willner

v. Committee on Character, 373 U.S. 96, 102 (1963);

Schware v. Board of Bar Examiners, 353 U.S. 232, 238-

39 (1957). Consequently, if plaintiff can establish that

defendants, under the color of law, have interfered with

that right and are not protected by 5 ge a immunity,

acy established a claim cognizable under 42 U.S.C.

To determine whether plaintiff has established any

deprivation of his constitutional rights, we must analyze

carefully the exact nature of the right asserted and the

alleged interference with that right by defendants.

First, there is no allegation that the Illinois authorities

denied plaintiff a fair hearing on his application for

licensure. Abundant and uncontradicted evidence es-

tablished that plaintiff was afforded extensive oppor-

tunities to be heard, to present witnesses and documen-

tary evidence, and to appeal any adverse decision.’ The

record shows that plaintiff repeatedly met, either for-

mally or informally, with the Illinois licensing

authorities, often discussing plaintiffs criminal convic-

tions or the origin and nature of the 1967 affidavit. Even

assuming the Wisconsin authorities provided the Illinois

authorities with false information about plaintiff, it is

clear that the Illinois authorities granted plaintiff a full

opportunity to refute it. In addition, plaintiff does not

contend that the refusal of the Illinois authorities to

ant him a medical license was arbitrary or erroneous.

nsequently, we hold that there was no foreclosure by

any Illinois authorities of plaintiff's rights to procedural

due process.

7 Plaintiff did not appeal either denial of licensure by the

Medical Board of Illinois.

No. 80-1176 A i

The second possible theory for plaintiff is that defen-

dants took such an active role in the Illinois proceedings

that their actions interfered unconstitutionally with

paneer’ right to obtain a fair hearing before the II-

inois licensing authorities. But, we agree with that por-

tion of the district court’s opinion holding that plaintiff

had failed t. »rove defendants’ active involvement in or

distortion of the Illinois proceedings. The record simply

does not establish an ang more than that the defen-

dants provided alleged false information to the Illinois

authorities responsible for providing plaintiff with a fair

hearing on his application for licensure. It would be a

significantly different case if there were some evidence

of collusion, conspiracy, or agreement between the

government officials involved.* Lacking such evidence in

this case, we must conclude that plaintiff failed to es-

tablish any constitutional deprivation as a result of

defendants’ limited involvement in the Illinois

proceedings.

The remaining issue is whether plaintiff has estab-

lished a denial of any constitutionally protected liberty

interest by proof that defendant officials knowingly and

maliciously supplied damaging false information about

plaintiff to the authorities of another government entity

that was vaimaaatsd 5} plaintiff's application for pro-

fessional licensure. The question is whether plaintiff

*,. We believe it is unnecessary and inappropriate for this

Court to resolve the difficult question of whether a claim

could be established under 42 U.S.C. § 1983 by a showing that

an official of one state or government entity took such an ac-

tive role in the proceedings of a second state or entity, short of

collusion, conspiracy, or agreement, that the official could be

guilty of Genying an individual his constitutional right to a

air hearing before the second entity. The facts of this case

simply do not require us to reach that weighty question, and

we reserve it for another day.

* We assume for purposes of this discussion that defendants

did maliciously or in bad faith provide false information about

(Footnote continued on following page)

A-10 No. 80-1176

has established a claim for deprivation of a protected

liberty interest or merely has stated a traditional

common-law claim for defamation. Stated in this

manner, plaintiff's case falls clearly in line with the

cases developing from Board of Regents v. Roth, 408 USS.

564 (1972), and Paul v. Davis, 424 U.S. 693 (1976).

In Roth, although the Supreme Court did not find that

there had been any violation of the plaintiffs con-

stitutional rights,” the Court set forth, in general terms,

the circumstances where defamatory statements by

ublic officials may implicate protected liberty interests.

e Court set forth the rudiments of the “stigma plus”

test—that where, in the process of terminating or refus-

ing to rehire a public official, the state makes “any

charge against him that might seriously damage his

standing and associations in the community.” 408 US.

at 573, due process requires that the individual be af-

forded an opportunity to refute the charge. Charges that

might implicate a person’s “ name, reputation,

honor, or integrity” would include charges such as “that

he had been guilty of dishonesty, or immorality.” Id.

The scope and limitations of the — rs test

were clarified in Paul v. Davis, 424 U.S. 693 (1976).

® continued

plaintiff to the Illinois authorities. But, we believe there are

very serious questions whether plaintiff, in fact, did prove

either falsity or maliciousness.

1 In Board of ow v. Roth, 408 U.S. 564 (1972), the

Supreme Court held that a state’s refusal to rehire a non-

tenured faculty member without providing him with a hear-

ing or an explanation of reasons was permissible. In Roth, the

terminated faculty member had no property interest in con-

tinued employment at the expiration of his one-year contract,

and the state officials, in refusing to re-hire plaintiff, had not

“imposed on him a stigma or other disability that foreclosed

his freedom to take advantage of other employment oppor-

tunities.” 408 U.S. at 573.

1 In Paul v. Davis, 424 U.S. 693 (1976), a photogra h of the

plaintiff, bearing his name, was included on a pean flyer of

so-called “active eee and was circulated by two chiefs of

police to Louisville, Kentucky merchants during the Christmas

(Footnote continued on following page)

No. 80-1176 An

The question presented to the Court was whether the of-

ficials’ defamation of plaintiff, “standing alone and apart

from any other governmental action with respect to him,

stated a claim for relief under 42 U.S.C. § 1983 and the

Fourteenth Amendment.” 424 U.S. at 694. The Court

concluded that damage to one’s reputation alone, even

though inflicted by public officials, failed to implicate a

protected liberty interest. The Court stated:

The words “liberty” and “property” as used in the

Fourteenth Amendment do not in terms ‘single out

reputation as a candidate for special protection over

and above other interests that may be protected by

state law. While we have in a number of our prior

cases pointed out the frequently drastic effect of the -

“stigma” which may result from defamation by the

government in a variety of contexts, this line of

cases does not establish the proposition that reputa-

tion alone, 1 nde from some more tangible interests

such as i oyment, is either “liberty” or “proper-

ty” by itself sufficient to invoke the procedural

protection of the Due Process Clause.

424 US. at‘701.

This Court has applied the “stigma plus” test of Roth

and Paul v. Davis in two recent decisions. Colaizzi v.

Walker, 542 F.2d 969 (7th Cir. 1976), cert. denied, 4380

U.S. 960 (1977); Elbert v. Board of Ed., 630 F.2d 509

(7th Cir. 1980), cert. filed, No, 80-1312 (Feb. 4, a0). In

Colaizzi, the court held that plaintiffs had stated a claim

under § 1983 where they alleged that in connection with

their dismissals from state employment, state officials

made defamatory public statements charging plaintiffs

1 continued |

shopping season. In fact, the plaintiff had been arrested

for, but not convicted of shoplifting. After the charge givin

rise to his inclusion on the flyer had been dismissed, plainti

brought a § 1983 action against the police chiefs, alleging that

the stain on his reputation resulting from the circulation of

the orer had deprived him of liberty without due process of

law. The Supreme Court held that he failed to state a claim

rad Sser vate of any constitutionally protected liberty in-

res

A-12 No. 80-1176

with reprehensible conduct. The court read Paul v.

Davis to mean that “stigma to one’s reputation, inflicted

by the state, is not of itself a deprivation of liberty

within the meaning of the Fourteenth Amendment.” 542

F.2d at 973. But, the court reasoned that:

stigma to reputation (not itself a deprivation of

liberty as defined in the Fourteenth Amendment)

plus failure to rehire or discharge (not necessarily

involving deprivation of property as defined in the

Fourteenth Amendment) may nevertheless when

found in conjunction state a claim under 42 U.S.C.

; 1983 for deprivation of a Fourteenth Amendment

iberty interest without due process. ,

Id. (emphasis in original). Since there was stigma plus

discharge by the state authorities, we held that plaintiffs

had stated a claim for deprivation of a protected liberty

interest.

Finally, in Elbert v. Board of Ed., 630 F.2d 509 (7th

Cir. 1980), the court refused to find that the “stigma

plus” test had been satisfied where, although a

defamatory statement had been made by school board

officials in connection with the public announcement

that the plaintiff would be terminated at the conclusion

of the school year, plaintiff later was rehired and was

never terminated. The court reasoned that since no loss

of employment ever occurred, the defamation was not

accompanied by the requisite loss of a government

employment, right, or Bagi ae Consequently, plaintiff's

allegations constituted nothing more than a claim of

common law defamation by state officials. And, the

court stated that “{djefamatory publications by a state

official, however seriously they may harm someone, do

not deprive that person of any oor interests protected

by the due process clause.” 630 F.2d at 512, citing Paul

v. Davis, 424 U.S. at 712.

We must now apply the “stigma plus” test as

‘developed in this line of cases to the facts of this case.

Even if we assume that plaintiff has proved a “stigma”

as a result of defendants’ correspondence with Illinois

authorities incorrectly characterizing plaintiffs criminal

No. 80-1176 — A-l3

convictions and falsely accusing plaintiff of originatin

the affidavit idea, the “stigma plus” test is not satisfied.

Plaintiff has failed to prove that these defendants were

connected with any denial of a government benefit or

privilege, i.e. licensure. The affiliation between stigma

and denial of a government benefit is absent. Although

defendants’ actions may have imposed a stigma on plain-

tiffs reputation, plaintiff's claim fails to establish that

defendants’ defamation was “in conjunction” with the

denials of licensure in Illinois. The Illinois authorities

and the Illinois denials of licensure were on and

distinct from any defamatory statements e by these

Wisconsin officials.

Consequently, plaintiff’s claim is reduced to an allega-

. tion that these defendants made defamatory statements

about plaintiff to the Illinois licensing authorities. But,

as the Supreme Court in Paul v. Davis end this court in

Elbert held, defamatory statements by public officials,

' anes Bene. are insufficient to state a claim under

§ 1983. We acknowledge again that “§ 1983 is not, and

should not become, a general federal tort law.” Elbert,

630 F.2d at 513. The district court’s grant of judgment

to defendants notwithstanding the verdict was ap-

propriate.}2

III

For the foregoing reasons, the judgment below is

AFFIRMED.

2 Both parties have presented additional issues regarding

jury instructions, discovery issues, the yg Song of qual

immunity, and the res judicata effect given to state

court determinations. In light of our discussion of this case on

its merits, and our conclusion that plaintiff does not have a

; ype under 42 U.S.C. § 1983, there is no reason for this Court

dress these issues,

A-14 No. 80-1176

Cupany, Circuit J . Concurring: I concur in the

reasoning and result of the majority opinion except to

the extent that it may suggest that “collusion, con-

spiracy, or agreement between the government officials

involved” would be requisite to a successful Section 1983

claim based on an “interstate” denial of a fair hearing.

Where numerous officials in several states are pursuing

a virtually joint inquiry into the same questions of the

professional qualifications of a particular individual,

state boundaries need not provide a shield against con-

stitutional tort liability. The instant case fails essentially

for lack of evidence.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 4969—Midwest Law Printing Co., Inc., Chicago—3-12-81—350

Ae-15

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

DR, MILTON MARGOLES,

Plaintiff,

DR. THOMAS W, TORMEY, JR.;

individually and as a member of

the Wisconsin State Board of

Medical Examiners; and LEROY

L. DALTON, individually and as

counsel to the Wisconsin State

Board of Medical Examiners,

Defendants.

OPINION AND ORDER

70-C-151

This civil action for money damages was tried

to a jury on the issue of liability only. A special

verdict was returned, with the jury finding for

plaintiff on five of the seven special verdict

questions. Defendants have renewed their motions

for directed verdict made at the close of plaintiff's

case and at the end of the trial and have moved for

judgment notwithstanding the verdict. Additionally

and alternatively, defendants have moved for a

new trial,

The motion for judgment notwithstanding the

verdict will be granted with respect to special

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verdict questions 3 through 7. lam satisfied that, :

no matter how favorably it is viewed, the evidence

in this case can not support the conclusion that the

defendants violated any constitutional right of

plaintiff. Furthermore, I am persuaded that

defendants' motion for a directed verdict made at

the close of plaintiff's case should have been

granted in all respects and that this case should

not have been submitted to the jury.

The initial and persistent problem in the trial

of this case has been to try to analyze the precise

nature of plaintiff's claim, that certain employees

and officials of the State of Wisconsin Board of

Medical Examiners violated his constitutional right

to pursue his profession and apply for medical

licensure in states other than Wisconsin by dis-

seminating false information about plaintiff to

the medical licensing boards of other states. In

an order entered just prior to the start of trial,

I noted that, at no time in the protracted history

of this litigation had any court focused its attention

upon plaintiff's claim. I stated that I was persuaded

that there could be a constitutional claim based upon

interference with one's right to pursue a profession,

but that I was at least tentatively of the opinion that

such interference would have to involve something

more than the dissemination of information; that I

did not know what the showing might be but that

"it would seem that it would have to include a

showing of defendants' active involvement in or’

distortion of the licensing procedures"' of the

other states. At the time, I thought it unlikely

that there would ever be a situation which would

fit the hypothetical; that is, where the officials of

one state could ever be in a position to control or

>’

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distort the licensing procedures of another state,

but I thought that, particularly in view of the

number of years in which plaintiff has pursued this

lawsuit, he should have the fullest possible oppor-

tunity to try to show a nexus between some act of

the defendants and a constitutional wrong to himself,

Upon continued reflection Iam even less sure

that there is any substance to plaintiff's claim that the

officials of one state could be found to have violated

an individual's liberty interest in pursuing his or her

profession in another state.“ Stated in the abstract

it sounds plausible; it becomes less so when one

tries to hypothesize activities which would constitute

such a direct interference as to amount to a consti«

tutional violation and which would also be taken under

color of state law,

As I noted, it is clear that something more must

be alleged than the mere dissemination of false and

degrading information about the individual. Dissem-

ination alone would amount to ne more than a state

law claim for defamation, unless it were accompanied

by the alteration or extinguishment of a right or status

previously enjoyed by the person allegedly defamed.

Paul v. Davis, 424 U.S, 493, 711-712 (1976).

1. It is clear that there is such a liberty interest,

at least to the extent that the state is prohibited from

excluding persons from the practice of a profession

on an arbitrary or procedurally unfair basis. See,

e.g-, Wilner v. Committee on Character, 373 U.S,

96 (1963); Schware v. Board of Bar Exam'rs, 353

U.S, 232 (1957). See, also, Tribe, American

Constitutional Law, 511-543, 948-953 (1978).

A-18

Possibly, it would constitute an actionable vio- -

lation of plaintiff's constitutional rights if the

defendants had procured false testimony which was

introduced at a hearing held in another state on

plaintiff's licensure application, or if they had

threatened witnesses, or physically disrupted the

actual hearing. However, nothing of this sort was

alleged in plaintiff's complaint or proven at the trial.

In fact, despite the nine years which he had for

preparation of this case, plaintiff was able to prove

little or nothing about anything. On the eve of trial

he abandoned claims relating to events in the state

of New Jersey; during the trial, he had to abandon

any claims relating to acts in the state of Michigan;

and he had no proof of any substance on his claims

relating to the state of lowa and to defendant Pres-

sentin and those claims did not withstand a motion

for directed verdict made at the close of his case.

The evidence relating to the only two surviving

claims concerning events in the state of Illinois was

minimal at best. |

Distilled, it consists of the following:

In 1964, at a time when plaintiff's Wisconsin

medical license had been revoked following his

conviction of and imprisonment for the crimes of

violation of the Internal Revenue Code, obstruction

of justice, endeavoring to corruptly influence an

officer of a court of the United States, and commun-

icating with a juror, plaintiff applied for a medical

license in the state of Illinois which would enable

him to accept an Illinois state hospital position

which had been offered to him. In connection with

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plaintiff's application, defendant Tormey wrote to

the Director of the Department of Registration and

Education of the State of Illinois, ostensibly on

plaintiff's behalf, seeking information from the

State of Illinois concerning plaintiff's chances of

obtaining licensure in that state without having had

his State of Wisconsin medical license reinstated.

In that letter, defendant Tormey used the phrase

"bribe a judge, '' to describe one of the offenses for

which plaintiff had been convicted and which had been

the basis for the revocation of his Wisconsin license.

Technically, the use of the word, ‘bribe, '' was

incorrect, because plaintiff had been acquitted of

the charge of attempting to bribe a judge and had

been convicted of endeavoring to corruptly influence

an officer of the court. In fact, as plaintiff testified

the conviction was based on the same set of facts as

was the charge of bribery on which plaintiff was

acquitted,

Both plaintiff and his son testified that this

letter affected plaintiff's credibility in the eyes of

the Illinois officials. (The letter appears as

Attachment A to this opinion. )

Also, plaintiff offered evidence to prove that

in 1969, plaintiff and his son, Perry, came to see

defendant Tormey at his office to ask him to write

a letter to the Illinois Medical Examining Committee

on plaintiff's behalf. Plaintiff explained that the

need was urgent because he was appearing before

the board the next week, and that he wanted a letter

explaining that the ‘affidavit idea'' had not originated

with him. The "affidavit idea"' referred to an

affidavit prepared by plaintiff's counsel sometime in

July, 1967, and signed by plaintiff on July 12, 1967,

in which plaintiff averred that if he were to have

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his Wisconsin medical license reinstated, he would

apply immediately for an Illinois license, and would

return the Wisconsin license to the board as soon as

he had obtained an Illinois license.

At the 1969 meeting with the Margoleses,

defendant Tormey agreed to write a letter for

plaintiff to take with him to Illinois. Since it was

late in the afternoon at the end of the week, defen-

dant Tormey wrote out the letter in longhand, had

it typed on his business stationery and gave it to the

Margoleses to take with them. (This letter is repro-

duced as Attachment B.) The following week, defen-

dant Tormey had second thoughts about the letter and

consulted with the Board's counsel, defendant Dalton.

On September 24, 1969, five days after writing the

first letter and giving it to the Margoleses, defendant

Tormey wrote a second letter, with defendant Dalton's

help, to the Illinois Medical Examining Committee,

revising the statements of his earlier letter with

respect to the origin of the "affidavit idea."' (This

letter is reproduced as Attachment C.)

Enclosed with the letter to the Committee were

a copy of a letter sent to the Circuit Court of Mil-

waukee County on August 1, 1967, by defendant Tormey

as Secretary of the State Board of Medical Examiners,

recommending against restoration of plaintiff's

medical license, and a copy of the affidavit signed

by plaintiff,

In deposition testimony read into the record by

plaintiff, Kenneth Schnepp, chairman of the Medical

Examining Committee of the State of Illinois from

1967 to 1974, testified that the Illinois committee was

aware of plaintiff's 1967 affidavit, that the Committee

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considered the affidavit matter in a number of

meetings with plaintiff; that the conflicting

information which was received at different times

made it difficult ''to get at the facts, '' that the

committee discussed the two September letters

from defendant Tormey with plaintiff in several

meetings, and that they based their denials of

licensure on a number of factors, including the

"affidavit idea, "'

In his opinion and order on defendants' first

motion for summary judgment entered herein on

July 25, 1975, the Honorable Robert D. Morgan

held that the doctrine of res judicata precluded

relitigation of issues raised before the Medical

Examining Board in 1965, 1967, or 1969, all of

which had been the subject of an appeal by plaintiff

to the Supreme Court of the State of Wisconsin and

discussed by that court in its opinion in Margoles

v. State Board of Medical Examiners, 47 Wis. 2d

499 (1970). Among the issues listed by Judge Morgan

was plaintiff's claim that the Board had misinterpreted

a suggested that plaintiff wanted a Wisconsin license

only for the purpose of obtaining a license in Illinois

and was willing to surrender the Wisconsin license

after the Illinois one had been granted.

In groping for a plausible constitutional depri-

vation on which plaintiff's case might proceed, I

suggested that, if the defendants could be shown to

have disseminated false and degrading statements

about plaintiff, knowing such statements to be false

and intending by their acts to interfere with plaintiff's

opportunity for a fair hearing in another state, and if

those false statements could be shown to have

precluded plaintiff from obtaining a fair hearing in

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another state, not merely because the information

was false, but because by the manner and timing of

its transmittal plaintiff was caught off-guard and

unprepared to respond to the information and some-

how deprived of a fair opportunity to make his

request for relicensure, then plaintiff might have a

claim for a violation of his constitutional right toa

fair hearing on an application for a professional

license.

As the formulator of this theory of a constitu-

tional wrong, I can say now that I believe it is

completely without merit. As defendants’ counsel

attempted to point out, there is nothing inherently

unconstitutional in the sending of a contradictory

letter about an applicant to a licensing board or

even in writing and sending a false and defamatory

letter about the applicant. It is a distortion to try

to make it such by adding on to it the element of

intention to violate a constitutional right. The

proper question is whether the defendant performed

some unconstitutional act intentionally; that is, non-

negligently; not whether the defendant performed an

act other wise constitutional with a malicious intent

which made the act unconstitutional. Had this

distinction been thought through clearly, it would

have been another reason not to have sent the case

to the jury.

Additionally, the theory, as I proposed it, is

meaningless without a clear idea of what is meant by

a "fair hearing.'' Without instruction on this point,

the jury could not have made an informed decision on

special verdict questions 3 and 6,

me tien peely Be fee ie alld OO a tS > o

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In any event, even if there were some substance

to the theory as formulated, plaintiff did not prove

the facts necessary to support the claim.

In the first place, it is a matter of law that

there was nothing false about the statements in

defendant Tormey's September 24th letter concern«

ing plaintiff's affidavit. The truth or falsity of the

origin of the "affidavit idea'' was at issue in the

state court proceedings initiated by plaintiff. Thus

he is precluded by the principles of res judicata

from relitigating that aspect of the case in this

litigation.

In the second place, even if plaintiff had

asserted at trial that the harm caused by the

September 24th letter resulted not from its falsity,

but from the conflict in the statements in the two

letters,” there is no evidence in the record to show

that the two letters kept him from receiving a fair

hearing. There is nothing which would indicate that

had plaintiff thought himself unreasonably prejudiced

by the two conflicting letters, he could not have

asked for a continuance of his hearing, that he

could not have asked for an adversarial hearing, or

that he could not have called witnesses in his

behalf to rebut any implication of wrongdoing in

defendant Tormey's letter, :

In answering 'no'' to special verdict question

no, 1, the jury found that plaintiff had not shown

2. Plaintiff makes the assertion in his post-trial

brief, but he did not make it during the course of

the trial,

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that defendant Tormey had used the phrase, "bribe a

judge, '' knowing it to be false, intending to prevent

plaintiff from pursuing application and that the false

statement was not the substantial factor in preventing

plaintiff from obtaining a fair hearing on his applica-

tion for licensure.

With respect to its answer to question no. l,

the jury's verdict is sound. There was substantial

credible evidence from which the jury could have

found that defendant Tormey did not understand the

slender distinction between a bribery conviction and

a conviction for "corruptly influencing."' The full

contents of the letter controverted any implication

that defendant Tormey was acting with intent to

prevent plaintiff from obtaining relicensure.

Finally, there was no credible evidence from which

the jury could have found that the letter prevented

plaintiff from obtaining a fair hearing.

However, with respect to the jury's answers to

the last five questions of the special verdict, the

verdict can not stand. With respect to these five

questions, the motion for judgment notwithstanding

the verdict will be granted.

Since the defendants' motion for judgment not-

‘withstanding the verdict will be granted, there is

no need to consider their alternative motion for a

new trial. However, a few comments may be

appropriate in the event the case is appealed and

the judgment overturned.

-In their post-trial brief, defendants have pointed

out the prejudice which inured to them by the last-

minute amendment of the witness list by plaintiff. It

AwW25

is understandable that defendants Dalton and Tormey

were surprised by the ruling to allow plaintiff to call

them as witnesses in his case since they had not

been included on the witness list submitted on Oct-

ober 9, 1979, pursuant to court order. However,

defendants did not request a continuance to permit

them an opportunity to develop their defense more

fully in light of the unexpected testimony. Had they

done so, their request would have been granted. If

a new trial must be held, presumably defendants will

have ample opportunity to develop the factual evidence

of what did or did not occur in Illinois and, in particu-

lar, with respect to what opportunities plaintiff had

for a full and fair hearing on his application for licensure,

In his closing argument, plaintiff's counsel argued

the suppression of documents by defendant Tormey as

an indication of defendant Tormey's malice. I do not

recall that defendants objected to this, However, I do

not believe that it was proper argument, since plaintiff

had not proved that defendant Tormey had withheld any

documents except in compliance with the law. Ata

new trial, I would not allow plaintiff to pursue this

line of argument unless they proved intentional and

wrongful withholding of documents on defendant

Torme y's part.

Finally, the trial of this case raised questions

about the allocation of the burden of proof on what is

3. It is probable that had it not been for my questioning of

plaintiff's counsel at the final pretrial comference, plaintiff

would not have thought to call defendants Dalton and Tormey

as witnesses and would never have established the commissic

of any acts of any kind by any of the defendants.

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referred to as the affirmative defense of good faith.

Ordinarily, it is the defendant's burden to esta-

blish an affirmative defense. In the case of the good

faith defense for government officials, however,

placing the burden of proof on the defendant seems

unworkable and unwarranted: unworkable, because

as a practical matter, it is almost impossible to

prove the lack of a subjective malicious intention

to violate another's constitutional rights or the lack

of an objective legal standard of behavior; and un-«

warranted, because the concept of a qualified immun-

ity for government officials stems from concern that

such persons be permitted to function reasonably

free from fear that the exercise of discretion will

subject them to liability. See, discussion in Cruz

v. Beto, 603 F.2d 1178, 1182-1184 (5th Cir. 1979).

I believe that, in a suit against governmental

officials brought pursuant to Title 42 of the United

States Code, the plaintiff should bear the burden of

proving by the preponderance of the credible evidence

that the defendants did not act in good faith, assuming,

of course, that defendants have raised the defense.

ORDER

IT IS ORDERED that defendants' motion for judg-

ment notwithstanding the verdict is GRANTED with

respect to questions 3 through 7 of the special verdict.

The Clerk of Court is directed to enter judgment on the

verdict with respect to questions 1 and 2 of the special

verdict and notwithstanding the verdict with respect to

questions 3 through 7 for defendants and to DISMISS this

case with prejudice and with costs.

“~ Entered this 10th day of January, 1980.

BY THE COURT: Barbara B. Crabb

District Judge

OR See

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IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

August 15, 1978

Before Hon. Walter J. Cummings, Circuit Judge;

Hon, Robert A. Sprecher, Circuit Judge; Hon,

William J. Bauer, Circuit Judge

No, 78-1354

DR. MILTON MARGOLES,

Plaintiff-Appellant,

VS.

DR. F.A, ROSS, DR, THOMAS E, HENNEY, DR,

ROBERT G, ZACH, DR. G, STANLEY CUSTER,

DR, JOHN J, SATORY, DR, DAVID J. TWOHIG,

DR. H.G. WITHROW, DR, BENJAMIN LAWTON,

and DR, THOMAS w, TORMEY, JR,, individually

and as members of the Wisconsin State Board of

Medical Examiners; LEROY L, DALTON, indivi-

dually and as counsel to the Wisconsin State Board

of Medical Examiners; and DONALD PRESSENTIN,

individually and as investigator for the Wisconsin

State Board of Medical Examiners,

Defendants-Appellees,

Appeal from the United States District Court for the

Western District of Wisconsin. No. 7 C 151

Robert D. Morgan, Judge.

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ORDER

This is a civil action in which the plaintiff.

appellant, a physician, seeks money damages for

(1) an alleged violation of his civil rights by defama-

tion; (2) an alleged conspiracy to violate his civil

rights; (3) an alleged common law slander; and (4)

an alleged denial of his due process rights in the

conduct of hearings on his application for license

restoration. The district court granted the

defendants' motion for summary judgment on all

counts, For the following reasons, we reverse the

lower court's judgment on Counts Iand Il, and

affirm on Counts III and IV,

As the lower court recognized, the major issue

presented by the motion for Summary judgment on

Counts I and II was whether the named defendants

were immune from liability under S, 1983 by reason

of their status as state officials. And, as the court

also recognized, ''the present test for immunity from

liability for damages arising out of official conduct is

simply whether the conduct can 'reasonably' be

characterized as having been taken 'in good faith, '"'

More precisely, the Supreme has declared that under

S. 1983

"(a) compensatory award will be appropriate only

if the (official) has acted with such an impermis-

sible motivation or with such disregard of the

(plaintiff's) clearly established constitutional

rights that his action cannot reasonably be

characterized as being in good faith, "'

Wood v. Strickland, 420 U.S, 308, 322 (1975). in

this sense, then, the appropriate standard necessarily

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contains elements ofa "'subjective'' test, for it

demands an inquiry into the defendant's motive or

intent.

On this latter point, we also note that the

defendant's motivation is an ultimate question of

fact whose resolution depends on the circumstances

of his actions as established by the evidence at trial.

Askew v. Bloemker, 584 F.2d 673, 679 (1976) Itis

for this reason that '(c)ases in which motive and

intent plzy a leading role are peculiarly inappropriate

for disposition on a motion for summary judgment, "'

Id. Thus, as this Court has made clear, a plaintiff

is entitled to take to the jury the state-of-mind

defense on which the defendants rely under S, 1983

if he has adduced ''specific facts from which a

reasonable man, viewing all the evidence in the

light most favorable to (the plaintiff) and resolving

all testimonial conflicts in the same manner, could

infer that the defendants were acting either in bad

faith or unreasonably." Id.

Applying these general principles to the case

at hand, we must conclude that the plaintiff has

adduced facts that are sufficient to defeat a motion

for summary judgment on Counts land Il. More

particularly, when the evidence is viewed in the

light most favorable to the plaintiff, it tends to

show: (l) that Dr. Tormey sent an unsolicited

letter to the Illinois licensing authority which

falsely stated that the plaintiff had been found

guilty of bribery; (2) that Dr. Tormey informed

the Iowa Medical Board and a Michigan physician

that the plaintiff had been accused of conducting

illegal abortions, knowing that the Wisconsin

Medical Board had filed a report showing the charge

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to be groundless; (3) that the Assistant Attorney

General Dalton stated that he 'would go to any lengths

to prevent Di. Margoles from practicing again''; (4)

that Dalton wrote a letter to the counsel for the

Michigan Medical Board which falsely stated that the

plaintiff had been convicted of "attempted bribery";

(5) that Dalton failed to inform the licensing boards

of other states that there was evidence which exon-

erated the plaintiff of certain charged wrongdoings;

and (6) that the investigator Pressentin failed to

disclose the existence of his investigation report

exonerating the plaintiff of the abortion charges at

the 1965 hearing in which the plaintiff sought rein-

staternent of his Wisconsin license. When the

inferences most favorable to the plaintiff are drawn

from this and other evidence, a jury might reasonably

conclude that the defendants had acted maliciously.

We therefore reverse the district court's grant of

summary judgment on Counts I and Il.

By contrast, however, we find that, as a matter

of law, the defendant Ross cannot be held liable for

money damages for the “.eged slander of the plaintiff.

In Barr v. Mateo, 360 U.S, 564 (1958), the Supreme

Court declared that, in an action for common law

defamation against a public official, the fact that the

official was acting ''within the outer perimeter of (his)

line of duty is enough to render the (immunity)

privilege applicable, despite the allegations of

malice in the complaint....'' Id. at 575 (emphasis

supplied). The central question under Count III,

then, is not whether Dr. Ross was acting in good

faith, but rather, whether he was acting ''within the

outer perimeter of (his) line of duty." And it is

quite clear to us that when the chairman of a state

medical board grants a requested interview to a

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reporter to discuss matters that had been before the

board, he is indeed acting within the limits of his line

of duty. We therefore affirm the lower court's grant

of summary judgment on Count III.

Finally, we also affirm the lower court's grant

of summary judgment on Count IV on the grounds of

res judicata. The constitutional validity of the

plaintiff's 1969 hearing was the subject of the Wiscon-

sin Supreme Court's decision in Margoles v. State

Board of Medical Examiners, 47 Wis. 2d 499 (1970),

and the 1965 hearing was appealed only to the Wisconsin

circuit court. In both cases, then, there was a final

decision and res judicata therefore applies.

For these reasons, the judgment of the district

court is AFFIRMED IN PART AND REVERSED IN

PART,

September 7, 1978

On Petition for Rehearing

Order

On petition for rehearing, the Attorney General

for the State of Wisconsin correctly notes that the

order in this case appears to reinstate all defendants

as to Counts land II. On reconsideration, therefore,

the original order is amended as follows:

1) the first two lines of Page 2 of the order

are deleted;

2) substituting for the deleted material is

the following:

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"following reasons, we reverse the lower

court's judgment on Count I as to the

defendants Tormey, Dalton and Pressen-

tin, and affirm on all other counts, "'

In all other respects, the petition for rehearing

is hereby denied.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

DR. MILTON MARGOLES,

Plaintiff,

DR. F. A. ROSS, etc., etal.,

Defendants.

70-C-151

DECISION AND ORDER ON SECOND MOTION

FOR SUMMARY JUDGMENT

As developed and argued to date, plaintiff's

complaint seeks money damages, in what amount

to four counts, for alleged violation of his civil

rights by defamation and denial of due process of

law, and for alleged common law slander. Juris-~-

diction of the civil rights causes of action was laid

os 28 U.S.C. S. 1331 and 1343 (3) and 42 U.S.C.

1983 and 1985, and the slander cause of action

sgt on diversity of “ under 28 U.S.C. °

S. 1332, as well,

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Through a detailed Opinion and Order filed

herein on July 25, 1975 (67 F.R.D, 666), this court

allowed motions for summary judgment in favor of

all defendants on the conspiracy count (Second

Cause of Action, S, 1985) and on the due process

count (Fourth Cause), and allowed such motions in

favor of nine defendants on the so-called First

Cause of Action; but denied summary judgment to

defendants Dalton and Tormey on that count, and

to defendant Ross on the slander court (Third Cause).

Subsequently, after scheduled trial had been

delayed at plaintiff's request, the remaining

defendants filed a second motion for summary

judgment, which has been dealt with in a Report

and Recommendation and an Amendment to Report

and Recommendation issued to the parties and to

this judge, after briefing and argument before her,

by United States Magistrate Barbara B. Crabb.

The court hereby adopts the conclusion of said

magistrate that filing and consideration of the

second motion for summary judgment is appropriate.

Since the 1975 decision herein, the United States

Court of Appeals for the Seventh Circuit has decided

Beard v. Robinson, 563 F.2d 331 (7th Cir., 1977),

which clearly holds that the applicable state statute

of limitations in a federal civil rights (S. 1983) case

is the limitation on "all civil actions not otherwise

provided for, '' rather than the limitation governing

the closest analogous state tort action, Because.

this court in its earlier decision on the first cause

of action applied the two-year Wisconsin libel and

Slander limitation, and because Beard requires the

six-year Wisconsin limitation applicable to an action

"when a different limitation is not prescribed by law, "'

review of the prior decision is required to determine

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the extent to which application of the shorter statute

of limitations may have contributed to the orders

previously entered.” That such orders are still

subject to any necessary correction in this court now

is clear under Rule 54(b), Federal Rules of Civil

Procedure, because there was no express direction

for the entry of any judgment in the Opinion and

Order of July 25, 1975, Accordingly, the period

involved on Count I reaches back to June ll, 1964,

rather than to June ll, 1968, as heretofore held,

In responding to this second motion by defen-

dants for summary judgment, having changed

counsel at least a second time, plaintiff now

asserts that the ‘findings and opinion" in the 1975

Opinion and Order ‘are, unfortunately, confusing

and in some respects contradictory. '' He also

claims error in some of the facts there stated to

be uncrontroverted. To the extent that these

comments may be valid, relief should be provided,

It was not the court's intention in 1975 to make

"findings, '' in the sense that it decided issues of

fact, whether material or not; but, in keeping with

the letter and spirit of Rule 56(e), F,R,Civ.P., it

was attempting to state a factual background on which

no substantial dispute appeared to exist in the very

substantial record of briefs, affidavits, and discovery

materials, much of which is conclusory allegation, or

Opinion, or argument, and some of which is competent

and relevant sworn testimony.

1, The two-year Wisconsin statute of limitations

on libel and slander actions is still applicable to

the common law slander action against defendant Ross.

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There is no value here in disputation over

semantics or over immaterial matters. Care was

taken in gleaning the ''Uncontroverted Facts" in

1975, and the court is not willing to abandon those

now On any unspecified basis. It is perfectly clear,

of course, that the court did then find, and state,

triable issues with respect to defendants Tormey

and Dalton on the first cause of action, and with

respect to defendant Ross on the third.

As ordered in 1975, and in keeping with the

mandate of the last sentence of Rule 56(d), F.R.

Civ. P., the "Uncontroverted Facts" are to be

s deemed essentially established at any necessary

trial herein; but that need not preclude proof of any

relevant contacts by defendant Dalton with persons

in states other than Michigan, if, in fact, there

were such, No other supposed inaccuracies in the

"Uncontroverted Facts'' are perceived.

It is also urged that the 1975 ruling granting

defendants summary judgment on the fourth count,

through application of the doctrine of res judicata,

should be reconsidered and reversed. The court

is not willing to do that, in the firm belief that the

conclusion reached in 1975 is sound and that to

reverse it would be error,

- THE QUESTION OF IMMUNITY

The defendants' motion now under consideration

rests heavily on the doctrine of immunity of public

officials to civil damage suits. While that doctrine

was advanced and argued on the prior motion in 1975,

the point was not addressed by this court in any way

in its Opinion and Order, It can only be supposed that

it was overlooked in the number and complexity of the

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decisions there taken. In any event, there could be no

justification for not passing upon it now. Judicial

oversight, like application of the wrong statute of

limitations, is surely subject to correction before a

judgment has become final.

There is no dispute over the facts that, at times

here pertinent, defendant Ross was President anda

member of the Wisconsin State Board of Medical

Examiners; defendant Tormey was a member and

Executive Secretary of that Board; and defendant

Dalton was an Assistant Attorney General of the

State of Wisconsin, assigned as legal counsel to the

Board.* All are sued "individually and as members

of (or counsel to or investigator for) the Wisconsin

Board of Medical Examiners, "' and the allegations

against them charge things done or said in their

respective official capacities,

THE TEST FOR OFFICIAL IMMUNITY

An immunity of public officials to civil damage

suits is ancient in the common law. In holding a

judge exempt friom liability in a civil action for

acts done in the exercise of his official function,

the Supreme Court, in 1871, speaking through Mr.

Justice Field, said:

"This was adjudged in the case of Floyd

and Barker, reported by Coke, in 1608 (12 Coke

2. Donald Pressentin, an original defendant, was an

investigator for the Wisconsin Board of Medical Exam-

iners up to December 31, 1965, He was dismissed from

the case by the 1975 order because of the statute of limi- .

tations then considered applicable. Any wrongful action on

his part between June ll, 1965 and his leaving the board

might be actionable.

A-37

25), where it was laid down that the judges of

the realm could not be drawn in question for

any supposed corruption impeaching the verity

of their records, except before the king himself,

and it was observed that if they were required

to answer otherwise, it would 'tend to the

scandal and subversion of all justice, and

those who are the most sincere would not be

free from continued columniations.''' (Bradley

v. Fisher, (13 Wall.) 80 U.S, 335 at p. 347 (1871).

In Barr v. Mateo, 360 U,S, 564 (1959), the

Court, speaking through Mr. Justice Harlan,

began its Opinion, saying:

"We are called upon in this case to weigh

in a particular context two considerations of

high importance which now and again come into

sharp conflict -- on the one hand, the protection

of the individual citizen against pecuniary damage

caused by oppressive or malicious action on the

part of officials of the Federal Government; and

on the other, the protection of the public interest

by shielding responsible governmental officers

against the harassment and inevitable hazards of

vindictive or ill founded damage suits brought on

account of action taken in the exercise of their

official responsibilities, ''

The Court in Barr sustained the immunity of

a federal rent control official against liability in a

defamation action, saying at page 572:

''The privilege is not a badge or emolument

of exalted office, but an expansion of a policy

designed to aid in the effective functioning of

A-38

government. The complexities and magnitude of

governmental activity have become so great that

there must of necessity be a delegation and re-

delegation of authority as to many functions, and

we cannot say that these functions become less

important because they are exercised by officers

of lower rank in the executive hierarchy.

xk & %

(p. 575) The fact that the action here taken was

within the outer perimeter of petitioner's line of

duty is enough to render the privilege applicable,

despite the allegations of malice in the camplaint,

koe ow

In Scheuer v. Rhodes, 416 U.S, 232 (1974),

Chief Justice Burger, speaking for a unanimous

court (except for Mr. Justice Douglas, who took

no part), reversed dismissal of suits under 42 U.S.C,

S. 1983 by personal representatives of students

killed by gunfire on the Kent State University

campus. The suits were brought against the

Governor of Ohio, the Adjutant General of the

Chio National Guard, various other Guard officers

and enlisted men, and the University president.

The trial court had dismissed the action as in effect

against the State of Chio and thus barred by the

Eleventh Amendment, and the Court of Appeals had

affirmed on the alternative ground of the common

law doctrine of absolute executive immunity. The

Court held the Eleventh Amendment no bar to suits

against individuals, and the immunity of public

officials "not absolute.'' The opinion observed,

starting at p. 249:

A-39

"These cases in their present posture present

no occasion for a definitive exploration of the

scope of immunity available to state executive

officials * * *, In dismissing the complaints, the

District Court and the Court of Appeals erroneously

accepted as a fact the good faith of the Governor and

took judicial notice that 'mob rule existed at Kent

State University.' There was no opportunity

afforded petitioners to contest the facts assumed

in that conclusion, * * *Further proceedings,

either by way of summary judgment or by trial on

the merits is required. The complaining parties

are entitled to be heard more fully than is possible

on a motion to dismiss a complaint, ''

In Wood v. Strickland, 420 U.S, 308 (1975), the

Supreme Court of the United States again addressed

the matter of official immunity in the context of the

members and administrators of an Arkansas school

board being sued under S, 1983 by students claiming

infringement of their constitutional rights by expul-

sion from school, A court of appeals' judgment

sending the case back to the district court for a new

trial was vacated and the case was remanded to the

appeals court for determination of a question involving

alleged procedural due process; but on the question of

the extent of the qualified immunity of the public

officials involved, the Court, speaking through Mr.

Justice White, said, in concluding Part II of the

Opinion, at page 322:

"A compensatory award will be appropriate only

if the school board member has acted with such an

impermissible motivation or with such disregard of

the students' clearly established constitutional rights

that his action cannot reasonably be characterized as

-*%

A-40

being in good faith,"

In that case (Wood v. Strickland, supra), four

justices, who concurred in the judgment and all

‘other parts of the opinion, felt it necessary to, as

they said, ''dissent from Part II which appears to

impose a higher standard of care upon public

school officials, sued under S. 1983, than that

heretofore required of any other official. "'

It would thus appear that the present test for

immunity from liability for damages arising out

of official conduct is simply whether the conduct

can "reasonably" be characterized as having been

taken 'in good faith. '' The objective facts and

subjective motivations~ must be looked at in each

case to make that determination, and four of the

nine justices of the Supreme Court of the United

States believe that this statement of the test under-

states, in general, the degree of immunity which

is appropriate for public officials, at all levels

of public responsibility, in the performance of

their duties.

Plaintiff, in his brief, appears to agree with

this statement of the test, arguing only that defen-

dants are shown to have been guilty of bad faith, or

that there are genuine issues of fact on that question.

That the question is essentially one of law,

determinable on motion for summary judgment, is

expressly recognized in Scheur, supra.

3. In Wood, at p. 321, the opinion says that the

proper test contains both objective and subjective .

elements.

A-41

THE TEST APPLIED

While not really dealing with the question of

immunity, the magistrate's procedure, on this

second motion for summary judgment, involved

under a local rule or practice, a set of proposed

"Findings of Fact" by the movants (defendants),

e objections thereto by plaintiff, and evaluation of

the proposals and objections against the record by

the magistrate, with aid of argument from the

parties, in the process of deciding whether, in fact,

any genuine issues of material fact do exist. That

process resulted in proposed findings of fact by the

magistrate in the Report and Recommendation, as

amended, referred to above. Those recommended

findings have been specifically commented upon by

the parties. Those proposals, and the magistrate's

justifications therefor, along with subsequent com-

ments of the parties thereon, are of immense help

in applying the test for official immunity in relation

to the motion under consideration.

Of course, pursuant to prior order of court, the

magistrate applied the two-year statute of limitations

in certain considerations, and those considerations

require specific review,

With respect to defendant Tormey, the magistrate

proposes a finding that "he has never conveyed false

information" since June ll, 1968 (the two-year cutoff

date), recognizing an earlier letter containing a

misstatement that plaintiff had been 1>2und guilty of

attempting to bribe a judge. Running this point out

reveals that one or more of the letters which plaintiff

complains about were dated prior to June Ll, 1964,

A-42

outside the six-year limitations' period, ” and that

factual correction was indisputably issued when the .

error was called to Dr. Tormey's attention. Even

more important, however, the overall circumstances

of plaintiff's real adventures with the criminal law

clearly justify misunderstanding of the legal

technicalities on the part of Dr. Tormey, and pro-

vide no basis whatsoever to question his good faith

to any degree or in any way.

The change in applicable statute of limitations

does not appear to have affected the magistrate's

considerations with respect to defendants Dalton and

Ross. The magistrate did not consider any problem

with former defendant Pressentin, who had been

dismissed out of the case wholly on the basis of the

statute of limitations. As noted above, any showing

of "bad faith'! action with respect to plaintiff between

June ll, 1964, and his departure from the Board on

December 31, 1965, might be actionable through the

first count, if outside such immunity as his position

might involve. None such, however, has been called

to the court's attention(or been found), which could

reasonably be said to indicate anything but good faith

performance of his official duties as investigator

for the Wisconsin Board. Objective reading of

minor contradictions plaintiff developed, by going

back to people the Board investigators had inter-

viewed and quoted, or paraphrased, tend in general

to show objectivity and good ffith rather than the

contrary.

4. One letter, apparently addressed to an Illinois

official, was dated July 22, 1964, and referred to

charges before the Wisconsin board.

A#-43

Application of the test for official immunity, as

here argued by defendants, of course, does not in«

volve determination whether there is a genuine issue

of material fact on the issue of liability in the

absence of such immunity, but, rather, whether there

is any evidence, sufficient as a matter of law, to

permit a determination that good faith performance

of public duty may reasonably be questioned. If

"Yes, '' there is no immunity; if ''No, ' the motion

for summary judgment under consideration must

be allowed by applying defendants‘ qualified

immunity as Wisconsin public officials.

There is nothing in the magistrate's recom-

mended findings, nor in defendants' proposed

findings, to indicate a "Yes'' answer to that ques~

tion. It remains to examine carefully plaintiff's

comments and objections for such evidence,

because none is otherwise apparent to the court

from the record.

Plaintiff has filed a 64=page Response to the

motion, accompanied by a second volume containing

(1) affidavit of one of his new lawyers stating the

difficulty of getting documents authenticated in the

short time since he was retained; (2) affidavit of

plaintiff himself, largely consisting of a partial

calendar of events in his life since 1950; (3)

affidavits oi Clark R. Mollenhoff, a newspaper

reporter, Herbert L. Usow, a former attorney for

plaintiff, and of David Zweifel, another reporter;

and (4) some 27 other documents, some multi-page

and otherwise subdivided, consisting of miscellan-

eous documents, each labeled "Pl. Ex. ,"'

including (a) what purport to be minutes of the

Wisconsin State Board of Medical Examiners for

Aw44

certain meetings in 1956, 1957, 1964, and 1968;

(b) various letters signed by defendants Tormey

and Dalton and others; (c) a printed report of the

Board's recommendation against restoration of

plaintiff's Wisconsin license in 1965-66, containing

findings and conclusions, addressed to Honorable

John A. Decker, Judge of the Wisconsin Circuit

Court, who had revoked the license in 1962; (d)

‘various other letters, some keyed to alleged

"inaccuracies" in investigative reports to the

Wisconsin Board; and (e) an opinion of a then

lawyer for plaintiff on various reports of

opinions expressed to investigators for the Board, etc.

Plaintiff has also filed a separate 24-page

Response to Defendants' Proposed Findings of Fact

and Conclusions of Law and Plaintiff's Proposed

Conclusions of Law, as wellasa 15=page Response

to the U.S, Magistrate's Recommendations, a two«

page Response to Defendants' Objections to Said

Report and Recommendation, as amended, a Supple-

mental Brief, pursuant to leave of court, after oral

argument December 15, 1977, on the subject motion,

and a five-page Response to Defendants' Memorandum

Brief in Reply to Plaintiff's Supplemental Brief, He

has had the last word.

The court has reviewed the documents filed and

all references therein to definitive material, has not

been concerned about any lack of authentication of

apparent evidentiary documents, and has considered

all of the material before it in relation to the allegations

of the complaint and plaintiff's arguments against

application of the doctrine of official immunity. In

over ten years, plaintiff has had a full opportunity to

develop any evidence of bad faith, has apparently

’%

A-45

devoted constant effort to doing so, and has had full

Opportunity to be heard. Objective consideration of

all that material, individually and as a whole, does

not help plaintiff on this issue.

Plaintiff and his family are, no doubt, thoroughly

convinced of a "vendetta" against him by defendants

and former def endants; but such feelings and suspi-

cions, however sincere and deeply held, do not

remove the defendants here from that group categorized

by Mr. Justice Harlan in Barr, supra, as "responsible

governmental officers, '' or remove plaintiff's supposed

cause from the description, "vindictive or ill founded

damage suits brought on account of action taken in the

exercise of their official responsibilities, '' (360 U.S,

564). Defendants are entitled to such immunity from

harassment as the law does afford persons carrying

the important public responsibility which defendants

did at the times here pertinent, and bitter disapproval

by persons damaged thereby, financially and otherwise,

is to be expected.

Based on its consideration of the rgcord here,

this court cannot disagree with the new” "findings of

fact'' with respect to defendants Dalton and Tormey,

as recommended by the magistrate; but even if the

court were to make ALL of the findings in the plain-

tiff's ''Proposed Statement of Facts, ''as filed on May

20, 1977 (which it is by no means willing or able to do),

it is the judgment of this court that plaintiff would fail

to make a case against any defendant to prevent appli-

cation of the present doctrine of limited or qualified

5. As distinguished from the ''Uncontroverted Facts"

in the 1975 Opinion and Order.

¢%

A=46

immunity as the public official he was,

It is clear that, in addition to asking the Board

for a recommendation that his Wisconsin license be

restored, plaintiff, with the help of his son Perry,

or ganized a petition for a presidential pardon and

recruited reporters to write news stories about his

problems and efforts at vindication, to the general

effect that, having paid his debt to society by fines

and imprisoninent for his felony conyictions, he

should be allowed to practice medicine in Wisconsin

again, without mention or concern for the character

qualifications required of new applicants for license

so todos. A well-orchestrated campaign against the

Board is quite clearly shown. Any unreasonable

questioning of motives, or possible development of

vendetta, would appear more reasonably chargeable

to plaintiff's side of this controversy. The Wiscon-

sin Board and its members and advisers involved

here appear to have operated with reserve, fully in

the open, stating their reasons for decision public;

and, in the view of this court, on this record, have

done so with uncommon restraint. Plaintiff has

been licensed since 1966 in at least six jurisdictions,

including Illinois where he resides, without any

formal opposition from any defendant.

Essentially all that plaintiff and three sets of

counsel have developed since the case was filed in

1970, or before, which is said to indicate any bad

faith:

(1) The alleged plan to obtain a temporary

Wisconsin license only as an aid in obtaining an

lllinois license. The idea is said to have origina-

ted with a representative of the Wisconsin Board (not

A-47

Dalton, Tormey, Pressentin, or Ross). Plaintiff,

however, did willingly participate in the plan, which

was later reported against him as indicating a

character flaw. No entrapment is indicated by any

defendant, but a willingness of plaintiff to gain his

ends by subterfuge is clearly shown.

(2) A news reporter's opinion that defendant

Dalton was "hostile" to plaintiff in 1968, and another

news reporter's quotation of Dalton in 1968 that 'he

believed it was his duty * * * that he do everything

he possibly * * * could to make sure this guy does

not practice medicine." It might be observed that

strongly held convictions of public duty do not even

Suggest ''bad faith, '' although possibly often so

characterized by persons who do not agree with them.

(3) Various routine inquiries or responses

involving plaintiff between the Wisconsin Board and

medical boards in other states. It takes a one-track

vindictive reading of this correspondence to consider

it anything but objective and factual. Any other

course could well have been considered malfeasance.

The one exception, of course, is defendant Tormey's

reference to "conviction" for bribing, or attempting

to bribe, a judge, when, in fact, bribery was only a

charge on which there was an acquittal, and the

actual conviction was for attempting to obstruct

justice. As observed above, a physician's failure

to make this distinction is not surprising, and it is

certainly no indication whatsoever of bad faith. On

the other hand, correction of such an error upon

discovery is evidence of good faith performance

of public duty, as is the record in the Board minutes

that defendant Tormey made a motion to recommend

relicensure of plaintiff.

‘%

A-48

(4) The alleged slander committed by Dr. Ross

relating to abortion, in an interview by news' reporter

Margaret Bauman, in late May or early June, 1968,

who, incidentally, was recruited by Perry Margoles,

and who also confused the obstruction of justice

conviction with one for bribery. Ms. Bauman

related on deposition that Dr. Ross told her plain-

tiff could get his license back by proving he was of

good moral character. She said that when she

asked, "Is he an abortionist?"' Dr. Ross "kind of

hemmed and hawed about it, '' and that "there was

evidence, which he implied really wouldn't stand up

in court."' There is no doubt that such evidence

existed, though it was disputed, somewhat discre-

dited, and it was never acted upon. She also said

she didn't recall his exact words, and she wrote

a story about supposed Margoles hardships and

efforts for a presidential pardon, which didn't get

published and which didn't mention abortion.

(5) The court views plaintiff's arguments

about alleged withholding of information favorable

to plaintiff as pure ''smoke'"' on this issue.

The 1975 decision of this court did find some

genuine issues of material fact for trial, which,

absent the doctrine of limited official immunity,

would have justified a trial in this case. Unless

that important doctrine is completely ignored,

however, and unless state officials in charge of

licensing physicians to treat the physical and

mental ills of the public must perform their

routine functions in constant danger of personal

liability, without even a privilege of informal

exchange of information with similar officials in

other states, or a privilege of some degree of

A-49

candor with news people who ‘re sent to them, the

doctrine of immunity does protect the defendants

here from this lawsuit. To hold otherwise would

make impossible any degree of professional disci-

pline, even by one's peers within the profession.

There is no doubt that the questioning by

plaintiff of the good faith of defendants here,

whether considered objectively, subjectively,

or both, is simply not reasonable. The fact

that such questioning by plaintiff exists, however

strenuously, does not even tend to make it appear

reasonable. It is clear that defendants believed

plaintiff's conviction of felony, obviously involving

moral turpitude, with no showing of, or apparent

concern for showing of, any contrition, required

their withholding of favorable recommendation on

his demands and their discreet dissemination of

facts to other medical licensing authorities. They

talked conscientiously to newsmen plaintiff sent

to them.- They did not do more. If they had done

less, that could well be a basis for questioning their

performance of public duty. If acting as they did

in this case could subject them to personal liabil-

ity, their effective public service would be destroyed.

This record clearly supports the conclusion that the

doctrine of qualified immunity is applicable to all

defendants with respect to this suit. There are no

issues of fact for trial in that regard, and the

present motion must be allowed

Accordingly, IT IS ORDERED that defendants’

second motion for summary judgment is ALLOWED,

and the clerk is directed to enter judgment for

f ts.

defendants Robert D. Morgan

United States District Judge

entered February 23, 1978

A-50

IN THE UNITED STATES DISTRICT CCURT

FOR THE WESTERN DISTRICT CF WISCONSIN

DR. MILTON MARGOLES,

Plaintiff,

DR. F. A. ROSS, etc., et al.,

Defendants.

70-C-151

OPINION AND ORDER ON MOTION

FOR SUMMARY JUDGMENT

This is a civil action for money damages.

Plaintiff sues in four ''causes of action" for (1)

the alleged violation of his civil rights by

defamation, (2) an alleged conspiracy by all

defendants to violate his civil rights as alleged in

the first cause, (3) alleged slander by defendant

Ross in an interview with a newspaper reporter,

and (4) alleged denial of his right to due process

of law in the conduct of hearings by the Wisconsin

State Board of Medical Examiners concerning his

application for restoration of license to practice

medicine in Wisconsin. Jurisdiction is claimed

under 28 U.S.C, S. 1331 and 1343(3) and 42 U.S.C.

S. 1983 and 1985, and also under 28 U.S.C. S. 1332.

In complaint originally filed June ll, 1970,

plaintiff sets forth that he was convicted of

violations of the Internal Revenue Code of June 3,

1960, and was sentenced to serve one year in

A-51

prison and to pay fines of $15, 000; that he was

convicted on October 12, 1960, of atternpting to

influence an officer of the court and to obstruct

justice, and was sentenced to serve five years

in prison and to pay fines of $5,000 (and on the

Same day was acquitted of a charge of attempted

bribery); that on June 6, 196l, he was convicted

of a misdemeanor for communicating with a juror

and was sentenced to serve six months in prison

and to pay fines of $1,000; that on July 14, 1960,

the Wisconsin State Board of Medical Examiners

recommended revocation of his license; that on

February 26, 1962, his license was revoked by the

Circuit Court for Milwaukee County; that on

September 15, 1962, he was released on parole;

that in September, 1966, his parole expired; that

he has since applied for and been granted licenses

to practice medicine in Michigan, Indiana, New

Jersey, California, Vermont, and the District of

Columbia; and that he has applied for and been

denied licenses in Iowa, Illinois, and Wisconsin,

among other states. (License has been granted

in Illinois since the complaint was filed. )

For his first cause of action, plaintiff alleges

that defendants, or some of them, or one of them,

have attempted to prevent his licensure in other

states by supplying not only correct information

about him, but by vigorously and aggressively

supplying varying degrees and types of false

information to persons and agencies requesting

information about him, and to persons and agencies

not requesting such information. The degrees and

types of false information allegedly include the

following:

| inal Said ‘

———EEE a e) hs

A-52

l. Between March and June, 1966,

defendants sent certain unsubstantiated complaints

to the lowa State Board of Medical Examiners in an

attempt to induce that board to refuse plaintiff's

application for a license.

2. Between March and June, 1966,

defendants falsely and maliciously, in communi-

cation to the Iowa State Board of Medical Exam-

iners, accused plaintiff of having performed

illegal abortions.

3. During March, 1968, an employee of

the Wisconsin State Board of Medical Examiners

travelled to the State of Michigan under the direc-

tion of the defendants and interviewed potential

associates and employers of plaintiff in an attempt

to discourage them from employing and associating

with plaintiff, and also falsified certain records

and reports relating to plaintiff.

4. Between October and December,

1968, defendants made unsolicited contacts with

the New Jersey Medical Board and falsely and

maliciously advised that board that plaintiff was

fraudulently misrepresenting his background and

was unsuited for practicing medicine, all for the

pur pose of attempting to influence the board to

rescind plaintiff's license.

5. During the period from 1964 to and

including 1969, defendants sent letters to the

Illinois Medical Licensing Board which were

derogatory to plaintiff, and which contained false

representations, in a successful attempt to .

preclude an Lllinois license to the plaintiff.

ill

A-53

6. Defendants willfully and maliciously

misrepresented records and information for the

purpose of discrediting plaintiff and preventing his

licensure in certain states, precluding plaintiff's

employment by persons, organizations and com-

munities eager and willing to retain his services.

Plaintiff contends that by these utterances

defendants are depriving him of his right to

practice medicine and thereby of valuable property,

to his damage.

For his second cause of action, plaintiff al-

leges that all of the defendants conspired among

themselves to deprive him of the rights as set

forth in the first cause of action.

For his third cause of action, plaintiff alleges

that defendant Ross falsely, willfully and maliciously

made a statement to a reporter for United Press

International, in Milwaukee, Wisconsin, which was

substantially as follows: 'Dr. Margoles' attempt

to secure licensure in this state is a joke. '' ''He has

been performing abortions'"'; that defendant Ross

intended his statement to mean that plaintiff was

performing illicit and unlawful abortions on women

and violating his responsibility and oath as a

physician and surgeon; that the person to whom the

statement was made understood said words to have

such meaning; that the statement was not true; and

that defendant Ross knew that it was not true,

In an Amended Complaint for which leave of

court was granted December 21, 1973, for his fourth

cause of action plaintiff alleges that sometime after

his release on parole, he petitioned the Wisconsin

**%

A-54

State Board of Medical Examiners for reinstatement

of his license; that he was granted a hearing, after

which the board recommended that his license not

be reinstated; that in conducting the hearing, the

board and each member of the board deprived him

of his right to due process of law in the following

respects, among others,

l. The conclusions of the board were

based upon evidence which the board and the

members thereof knew was false.

2.. The findings of fact and conclusions

of law were contrary to evidence in the posses-

sion of the board.

3. The findings of fact and conclusions

of law were based, at least in part, on evidence

which was received by the board in camera, of

which plaintiff was not informed and which plaintiff

was not given an opportunity to rebut.

4. The findings of fact and conclusions

of law were based, at least in part, on evidence

which was received by the board subsequent to

the closing of the hearing.

The case is now before the court on defendants'

motion for summary judgment under Rule 56,

Federal Rules of Civil Procedure.

It is clear that no genuine issue exists with

respect to many facts which are established by

affidavit, admissions, irrefutable record, etc.,

and which are wholly uncontroverted, except .

possibly by argument as to import.

A-55

UNCONTROVERTED FACTS

Plaintiff is a resident of Illinois. Ali defen-

dants are residents of Wisconsin. All defendants

except defendants Pressentin and Dalton are of

have been members of the Wisconsin State Board

of Medical Examiners, which is the agency of the

State of Wisconsin empowered to license physicians

and surgeons in that state. Defendant Ross was a

member of the board from July, 1955, to July,

1959, and from July, 1965, to July, 1969. Defendant

Henney was a member of the board from July, 1959,

through May 19, 1975. Defendant Zach was a mem-

ber of the board from July, 1965, through July, 1969.

Defendant Custer was a member of the board from

approximately July, 1967, through July, 1971.

Defendant Satory was a member of the board from

approximately July, 1967, through July, 1971.

Defendant Twohig was a member of the board

from approximately July, 1967, through July,

1971. Defendant Withrow was a member of the

board from approximately July, 1959, through

July, 1963, and from July, 1965, through July,

1973. Defendant Lawton was a member of the

board from approximately July, 1963, through

approximately July, 1967.

Defendant Tormey was a member of the board

from July, 1953, through July, 1963, and from

July, 1965, through July, 1973. He was employed

by the board as Executive Secretary from July,

1963, through July, 1965, served as Secretary of

the Board from approximately February, 1954,

through July, 1963, and from July, 1965, through

July, 1973. Defendant Tormey was charged with

the responsibility of handling the correspondence

A-56

of the Wisconsin State Board of Medical Examiners,

continuously, from approximately February, 1954,

through July, 1973.

Defendant Pressentin was employed as inves-

tigator and legal counsel by the Wisconsin State

Board of Medical Examiners from approximately

August 15, 1954, to December 31, 1965. In that

capacity he was called upon to make investigations

for the board and report on such investigations

with respect to applications for relicensure by

persons formerly licensed in Wisconsin as physicians.

Defendant Dalton is employed as an Assistant

Attorney General by the State of Wisconsin, and

has been so employed since 1955. He has acted

as counsel to the Wisconsin State Board of Medical

Examiners since June, 1968. In that capacity, he

has rendered legal advice to the board and to

members of the board, has appeared at board

meetings at which plaintiff's relicensure was

discussed, has participated in the conduct of

hearings, and has engaged in investigative activity.

None of the defendants, Ross, Zach, Custer,

Satory, Twohig, Withrow, and Lawton, ever

communicated, either orally or in writing, infor-

mation contained in the board's files with respect

to plaintiff's attempt to obtain relicensure in

Wisconsin, or activities related thereto, to the

licensing boards, or members thereof, of any

other state, or to prospective employers or asso-

ciates of plaintiff. Defendant Henney, prior to his

assuming the duties of Secretary of the Board in

1973, never communicated, either orally or in

writing, information contained in the board's files

A-57

with respect to plaintiff's attempt to obtain relicen-

sure in Wisconsin, or activities related thereto, to

the licensing boards, or members thereof, of any

other state, or to prospective employers or

associates of plaintiff,

Defendant Fressentin never had any correspon-

dence with the medical licensing boards, or members

or employees thereof, in the states of Iowa, Llinois,

New Jersey, Michigan, Indiana, Vermont or the

District of Columbia, nor has he made investigations

of plaintiff in such states or in the District of Columbia.

Defendant Dalton made three trips to Michigan in

connection with the board's investigation of plaintiff

or in preparation for plaintiff's hearing before the

board. Except for these three trips to Michigan,

defendant Dalton never communicated, either orally

or in writing, with the medical licensing boards, or

members thereof, of any other state, or with pro-

spective employers or associates of plaintiff.

None of the defendants knowingly conveyed

false information concerning plaintiff, nor directed,

authorized, or acquiesced in the conveyance by

anyone else of any false information concerning

plaintiff to anyone. None of the defendants falsified

records concerning plaintiff, nor directed, authorized,

or acquiesced in the falsification by anyone else of any

records concerning plaintiff.

Defendant Tormey on one occasion wrote a

letter in which he made the misstatement that

plaintiff had been found guilty of bribing a judge. He

subsequently wrote to the addressee of the first

letter stating that he had erred in making that

‘a

statement.

During March, 1968, LaVerne stordock, who

was at that time the investigator for the Wisconsin

State Board of Medical Examiners and is now de-

ceased, traveled to the State of Michigan for the

purpose of making an investigation of plaintiff

with respect to plaintiff's pending application for

relicensure in the State of Wisconsin. Neither

defendant Ross, Henney, Zach, Custer, Satory,

Twonxig nor Withrow has any personal knowledge

as to what Stordock did while he was in the State

of Michigan, or the manner in which he conducted

the investigation which he had been directed to

make. Stordock was directly simply to make an

investigation with respect to plaintiff's activities

in the State of Michigan. Neither defendant Ros 8,

Henney, Zach, Custer, Satory, Twohig, nor

Withrow authorized, directed or acquiesced in the

preparation of any misleading reports by Stordock.

Defendant Lawton was not a member of the

State Board of Medical Examiners in 1968. He has

no knowledge whatsoever of the said trip taken by

Stordock to Michigan.

OPINICN

Construed liberally, the plaintiff's first cause

of action may be read as incorporating the specific

allegations that defendants, or somie of them, or

one of them, defamed him, and thereby violated

his civil rights under color of law by:

1. Gratuitously and from improper

motives sending out accurate information about him

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to persons and agencies in other states who had

made no request therefor.

2. sending out false information about

him to persons and agencies in other states who

may or may not have requested information. (such

false information allegedly included matters not

developed at the relicensure hearings, as well as

the allegedly false results of those hearings. )

3. Participating in the falsification of

investigative reports and other documents

concerning him.

It is inescapable that as to the first cause of

action, all defendants except Dalton, Tormey, and

Pressentin are entitled to summary judgment in

their favor on the basis of the undisputed facts

that none of those other defendants communicated

in any way with any persons in any other state

about plaintiff, and that none of them directed,

authorized, or acquiesced in the falsification of

any records concerning him.

Except for the question of Statute of Limitations,

which is dealt with hereinafter, on the present state

of the record it is equally clear that the motion for

summary judgment of defendants Dalton, Pressentin,

and Tormey is not sound with respect to plaintiff's

first cause of action. It is apparent, from the affi-

davits of defendants Tormey and Dalton, that they

convey information concerning plaintiff to the

licensing boards or to members of licensing boards

of at least one other state, in Dalton's case, and of

several states, in Tormey's case. Pressentin does

not disclaim oral communication in his affidavit.

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Whether the information conveyed was false,

improperly disseminated, or otherwise grounds

for a finding against these defendants, in the

absence of a limitations' bar, should be

determined at a trial.

SECCND CAUSE OF ACTiCN

For plaintiff's second cause of action, he

alleges that all of the defendants conspired to

perform all of the defamatory actions he alleges

in the first cause. He does not set forth any

specific facts which would tend to establish a

conspiracy. In their answers to the complaint,

defendants deny that they conspired to violate

plaintiff's civil rights; and in their affidavits

filed in support of this motion, each defendant

avers that he never attempted in any way to pre-

vent the licensure of plaintiff in any state other

than Wisconsin; and at no time did he ever attempt,

in any way, to preclude plaintiff's employment any-

where, or to discredit plaintiff with potential

employers, associates, or anyone else.

Defendants also submit the deposition of

Michael L. Sanfelippo, M.D., taken by the

plaintiff, in which Dr. Sanfelippo testified that he

was a good friend of plaintiff; that he had beena

member of the Wisconsin State Board of Medical

Examiners from 1961 to 1965; and that he had

never heard the subject of the resolution of plain-

tiff's relicensure applications discussed outside

of official meetings of the board.

Plaintiff has not submitted any opposing affi-

davit or other material which would tend to support

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his allegation that a conspiracy existed among the

defendants. The affidavit of his son Perry Margoles

does not do so. In his brief, plaintiff argues that

many materials show individual malice against him

On the part of certain defendants, and he Suggests

that the existence of a conspiracy may be revealed

by (1) a letter to ''Tom"' from defendant Ross, dated

October 28, 1965, suggesting a dinner meeting ata

restaurant to discuss plaintiff's situation, because

writings were not desirable; (2) a ''stream"' of

newspaper Clippings ''sent around"! by defendant

Ross, with Ross's comments attached; (3) an

undated, unsigned memorandum in the board's

confidential file, which indicates that defendant

Ross ''seems to have been doing some investigating

on his own about some of the matters involving Dr.

Margoles"'; and (4) an unsigned memorandum sent

to certain board members, dated December 10,

1965, complaining about a lack of effectiveness by

the board's investigator. Plaintiff has submitted

what appear to be copies of these letters and memo-

randa, but they are neither certified nor identified

by affidavit and cannot be said to be properly

before the court on a motion for summary judgment.

Even considering them so, however, they fall far

short of even suggesting conspiracy. An essential

element of conspiracy is agreement between two or

more persons. The documents submitted by plain-

tiff at best suggest the possible mental attitude

toward plaintiff of one person (with the exception of

the memoranda which cannot be clearly attributed

to anyone). These materials show no indication

whatsoever of an agreement of any kind between

two or more defendants here.

At the pleading stages of this proceeding, the

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court denied a motion by defendants to dismiss this

cause of action for failure to state a claim upon

which relief could be granted. Since the denial of

that motion in 1970, the plaintiff has had more than

an ample opportunity to develop some evidence of

conspiracy, if such existed, through the taking of

depositions, the propounding of interrogatories,

and the production of documents; but he has failed

to produce any factual material on this issue in

Opposition to defen‘iants' sworn statements.

Plaintiff is not required to try a genuine issue of

material fact on affidavits, but he can't make a

genuine issue out of extravagant allegations for

which he can develop no evidence whatsoever.

It must be concluded that plaintiff has shown no

genuine issue of material fact on his second

alleged cause of action and summary should be

allowed for defendants on the charge of conspiracy.

THIRD CAUSE OF ACTION

In his third cause of action, plaintiff alleges

that defendant Ross slandered him "'on or about

June 15, 1968.'' Defendant Ross denies that he

Slandered plaintiff as alleged. Defendant Ross

also alleges that the interview during which the

slanderous statement was alleged to have been

uttered took place before June, 1968, and that the

right of action set forth in plaintiff's complaint

did not accrue within two years next before the

commencement of the action. Wisconsin Statutes

S. 893.21(2) clearly provides that actions to recover

damages for slander must be commenced within

two years, and this action was filed June ll, 1970.

The record does not reveal the precise date of

the subject interview. The deposition of the

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interviewer, Margaret E,. Bauman, is before the

court, and Ms. Bauman testified that the interview

took place in late May or in June of 1968, but that

she could not recall the specific date, She produced

a typed draft of a proposed news article (which was

not published), dated June 15, 1968, which she

Stated she prepared sometime after her interview

with defendant Ross. The burden is on defendant

Ross to establish that the interview took place

prior to June ll, 1968, if he wishes to rely on the

affirmative defense of the statute of limitations,

A genuine issue is clearly present as to that

material fact on this possible defense.

With respect to statements made during the

Bauman-Ross interview, there are also genuine

issues of material fact. Dr. Ross denies Slan-

derous statements under oath. The Bauman

deposition, while far from precise, does indicate

that defendant Ross may have made statements

about plaintiff which could be considered Slanderous

on the matter of possible abortions. If this third

cause of action is not barred by the statute of

limitations, trial is necessary to resolve issues

over what was said, and such issues are both

genuine and material,

THE APPLICABLE STATUTE OF LIMITA TICNS

No federal limitation having been established,

it is clear that actions brought pursuant to Section

1983 of Title 42, United States Code, are limited by

the state limitations on the closest analogous state

tort action. O'Sullivan v, Felix, 233 U.S. 318

(1914); Jones v. Jones, 410 F.2d 365 (7 Cir. 1969)

See also Johnson v, Railway Express Agency,

A-64

__U.S.__ (#73-1543 decided May 19, 1975),

affirming 489 F.2d 525,

It is clear that the alleged injury for which

plaintiff seeks redress in the first cause of action

here, as well as in the third, is defamation of his

character and reputation, which he says has

prevented his obtaining licensure and employment

in his profession to the extent he desires,

As noted above, the Wisconsin Statute of

Limitation on ''An action to recover damages for

liber, slander * * *"'is two years. Wisconsin

Statutes S. 893.21(2). Another statute, however,

permits within six years ''An action to recover

damages * * * for an injury to the character or

rights of another, not arising on contract, except

in case where a different period is expressly

prescribed. '' Wisconsin Statutes S. 839.19(5).

Which statute is applicable here is of major

Significance because of the long period over which

allegedly actionable statements about plaintiff

were made by defendant Tormey.

The Wisconsin Supreme Court has considered

the alternative applicability of these two statutes

in a case involving statements about a man in an

alleged attempt to have him deported, The court

found the two-year period, limiting libel and

slander actions, to be applicable, rather than the

longer six-year period on actions for injuries to

‘character or rights.'' Cordova v. Gutieriez, 23

Wis. 2d 598, 128 N,W, 2d 62 (1964). This seems

eminently sound, especially because the latter

Statute expressly excepts cases where another

period is prescribed, as for libel or slander here.

A-65

It is just not possible to make plaintiff's first

cause of action anything but an action for damages

arising from false and derogatory statements, which

is classic libel or slander. The federal action

made possible by the civil rights statute doesn't

change the nature of the alleged injury in any way.

Accordingly, it must be held that plaintiff will be

limited in his proof at trial, on his first cause of

action, to communications by defendants Dalton

and Tormey, which occurred on or afier June ll,

1968, two years before this action was filed. since

it is clear that defendant Pressentin was not

employed by the Board after December l, 1965, and

could not therefore have taken any relevant action

under color of state law within the limitations'

period, the motion for summary judgment must be

allowed as to him on the gound of the Statute of

Limitations.

FOURTH CAUSE OF ACTICN

In his fourth cause of action, set up by the

amended complaint, plaintiff attacks the fairness

and validity of the 1969 hearing accorded him by

defendants on his application for relicensure in

Wisconsin. He says he has been denied procedural

due process of law. The answer of all defendants,

as lately amended with leave of court, sets up res

judicata as complete affirmative defense to this

alleged fourth cause of action.

In argument against the present motion for

summary judgment, plaintiff says, in substance,

that defendants withheld from him favorable evi-

dence, that they relied on evidence which they knew

was disputed by other evidence, and thet they

A-66

misinterpreted a suggestion that he wanted a

wisconsin license only to help get one in Jllinois,

and that he would surrender a Wisconsin license,

if granted, when that was accomplished.

The validity of plaintiff's 1969 hearing before

the Board was the subject of the Wisconsin Supreme

Court's decision in Margoles v. state board of

Medical Examiners, 47 wis. 2d 499 (1970). That

case came there on appeal pursuant to wis. Stat.

S. 227.21, to review a Dane County, Wisconsin,

Circuit Court judgment affirming a decision of the

Wisconsin State Board of Medical Examiners

denying a favorable recommendation for restora-

tion of plaintiff's license. The State Supreme

Court decision is well written and highly illunii-

nating and need not be repeated here.

The Wisconsin Supreme Court concluded that

plaintiff had been afforded complete due process,

in that a full hearing was held involving all the

fair play procedures required. The court found

that the records of earlier board proceedings in

1965 ana in 1967 had been made available to plain-

tiff and his counsel prior to the 19€9 nearing; that

the contents of the investigative report filed by

LaVerne stordock had been made known to plaintiff

and to his counsel; and that plaintiff's counsel had

given information ''tending to refute every adverse

statement or report given by Mr. Stordock."' (la.

at 511.) The court also found substantial evidence

to support the board's findings, and that the

findings supported the conclusions of law which

justified the decision not to recommend plaintiff's

relicensure.

A-67

Plaintiff argues here that the doctrine of res

judicata is inapplicable because the state court

case was in the nature of an administrative review

On the matter of licensure, while this case is a

suit for damages, an "entirely distinct and separ-

ate''cause of action. However, this is simply not

the test. The fourth cause of action asserted here

is alleged denial of due process of law in the whole

license proceeding. Whether ''due process"

actually was denied by the board with which defen-

dants here are involved was clearly an issue which

was presented to and carefully dealt with by the

Wisconsin courts, including the Supreme Ccurt of

the State of Wisconsin in its 1970 opinion cited

above. Flaintiff offers nothing to dispute that as

a factual matter. Since plaintiff has previously

been given a hearing, which was reviewed for

fairness by a court of competent jurisdiction on

the merits of the same issue he seeks to raise

here, and he did not seek further review in that

case, this court should not entertain, and indeed

has no jurisdiction for, relitigation of that

identical issue or cause of action.

The purpose of the doctrines of res judicata

and collateral estoppel is to eliminate repetitious

Suits, resulting harassment of parties, and the

consequent waste of judicial time.

"The rule (of res judicata) provides that

when a court of competent jurisdiction has

entered a final judgment on the merits of a

cause of action, the parties to the suit and

their privies are thereafter bound 'not only

as to every matter which was offered and

received to sustain or defeat the claim or

A-68 $

demand, but as to any other admissible

matter which might have been offered for

that purpose.' * * * Once a party has

fought out a matter in litigation with the

other party, he cannot later renew that

duel. '' Commissioner v. Sunnen, 333

U.S. 591, 597-598 (1948).

It is clear that the Wisconsin Supreme Court,

in deciding upon the issue of whether the hearing

afforded plaintiff due process, considered the

requirements of the federal constitution as asser-

ted by plaintiff. The choice in submitting this

federal constitutional question to the Wisconsin

Supreme Court was plaintiff's. He did not com-

mence an action based on alleged violation of

his civil rights after the hearing complained of,

but, rather, sought review in the Circuit Court

for Dane County, Wisconsin, followed by an appeal

to the Wisconsin Supreme Court. Having chosen

that method of approach in the courts of the State

of Wisconsin, his clearly available remedy, if he

bulieved that the Wisconsin Supreme Court was in

error on the question of due process, was to

petition the Supreme Court of the United States for

certiorari. He did not do so. He now seeks to

start over on the same issue at the trial level in

the federal court system. That is not to be permitted.

The Supreme Court has stated in England v.

State Board of Medical Examiners, 375 U.S, 411 (1964):

"***that if a party freely and without reservation

su»mits his federal claims for decision by the state

courts, litigates them there, and has them decided

there, then--whether or not he seeks direct review

é&

A-69

of the state decision in this Court--he has elected

to forgo his right to return to the District Court."

375 U.S, at 419

That was simply reaffirmation of the rule of

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923),

also lately followed in Hutcherson v. Lehtin, 485

F.2d 567 (9 Cir. 1973),

The principles of those decisions on this point

are controlling here. There exists no right to

relitigate the same due process issue in this pro-

ceeding. The motion for summary judgment must

be allowed as to the fourth cause of action on the

ground of res judicata.

Accordingly, IT IS ORDERED as follows:

1, The motion for summary judgment on

behalf of defendants ROSS, HENNEY, ZACH,

CUSTER, SATORY, TWOHIG, WITHROW, LAWTON,

and FRESSENTIN with respect to the first cause of

cation alleged is ALLOWED.

2. The said motion on behalf of defendants

DALTON and TORMEY with respect to said first

cause of action alleged is DENIED, subject to

limitation of proof to the twoxyear period prior

to June ll, 1970,

3. The said motion with respect to the

second cause of action involving alleged conspiracy

by all defendants is ALLOWED.

4. The said motion with respect to the third

cause of action is DENIED.

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5. The said motion with respect to the

fourth cause of action alleged is ALLOWED,

through application of the doctrine of res

judicata.

IT IS FURTHER ORDERED that the facts

Stated hereinabove as uncontroverted appear

without substantial controversy within the

meaning of Rule 56(d), F.R.Civ.P., and shall

be deemed established upon trial herein, insofar

as any such facts are material to remaining

issues,

Robert D. Morgan

United States District Judge

Southern District of Illinois

(Sitting in the Western District

of Wisconsin by designation of

the Chief Judge of the Seventh

Federal Circuit)

entered: July 25, 1975

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.