Petition — Wilhelm v. Continental Title Co.

— ae

8 3 ~ J 2 4 5 TT ee =

JAN 27 1984

NO. mmmmuunial stevas

c nena

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT L. WILHELM,

Petitioner,

Vv.

CONTINENTAL TITLE COMPANY,

ANGELO J. VISCONTI, and

DOROTHY J. -+PORTER,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DAVID L. SMITH

2036 Dexter Street

Denver, Colordo 80207

(303) 620-7012

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED FOR REVIEW

l. Whether the Court of Appeals

erred in ruling that handicapped persons

do not constitute a class entitled to

the protection of 42 U.S.C. §1985(3);

and that a conspiracy by a corporate

employer, its president, and others to

discharge an employee afflicted with

multiple sclerosis from his employment

because of his membership in a class of

handicapped persons, in violation of

state law, is not actionable under

§1985(3).

2. Whether the Court of Appeals

erred in ruling that nonfacial classes

are not entitled to the protection of 42

U.S.C. §1985(3).

3. Whether the Court of Appeals

erred in permitting the District Court

1

to dismiss the case by treating the

defendants’ motion to dismiss the

amended complaint as a motion for

summary judgment without following the

procedures set forth in Rules 12(b)

and 56, Fed.R.Civ.P.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW..... 1

TABLE OF AUTHORITIES......ceeeeee08 4

OPINIONS BELOW... cccccsscccccccccce 8

JURISDICTION. .cccccccccccccccccccee 9

STATUTORY PROVISION INVOLVED....... 10

STATEMENT OF THE CASE......2eeeeee+ 12

ARGUMENT... cccccccccccccccccccccces 14

tA? &b6 ene bo. 666s bheee bee eee 19

TABLE OF AUTHORITIES

CASES: PAGE

Adams v. Campbell Count

School reentrant 483 F.2d

Sm Cakes ATS) cccoccccccecese Af

Conley v. Gibson, 355 U.S.

41, 78 S.Ct. 99, 2 L.Ed.2a

Be Chewelccccecececcecsscecsooscece Af

Dry Creek Lodge, Incorporated

v. United States, 515 F.2d

Oth Cir. 1975), vert.

denied, 449 U.S. 1118, 101

S.Ct. 931, 66 L.Ed.2d 847

Dh 26 6s 6 .6E Ob 66:00 6 66666606068 16

Franklin v. Oklahoma City

Abstract & Title Company,

564 F.2dq 964 (lo0th cir.

oe Tyr rer rerTrrrerererrerere tee w

Glasson v. ok of Louisville,

F. t Cife ,

cert. denied, 423 U.S. 930,

96 S.Ct. 280, 46 L.Ed.2d 258

[Ritts 6ské 66066 6860600686060 60088 15

Griffin v. Breckenridge, 403

U. . 7, BeCee 790, 29

Domo me SRO (ADT) ccccctcccecceccce LG

Hansbury v. Regents of Univer-

Sity of California, 596 F.2d

944 (10th Cir. 19

TEP cececcosesteoces 17

Q

Harrison v. Brooks, 446 F.2d

St. Cia?. Fa) 6606068060 060466 15

Keating v. Carey, 706 F.2d

8: € eer eS

Life Insurance Company of

North America v. Reichardt,

591 F.2d 499 (9th Cir. 1979)....... 15

Means v. Wilson, 522 F.2d

th Cir. 1975), cert.

denied, 424 U.S. 958, 96

S.Ct. 1436, 47 L.Ed.2d

Dee. CRO Pel co 60660508605 006 6beecace as ae

Novotny v. Great American

Federal Savings & Loan

Association, o34 F.2d 1235

(3rd Cir. 1978), rev'd. on

other grounds, 442 U.S. 366,

99 S.Ct. 2345, 60 L.Ed.2d

957 Seo coctseccecessseveseceveese 15

People by Abrams v. ll

Cornwell Company, 695 F.2d

34 (2nd Cir. Ra aalpeaapgicioe 14

Scheuer v. Rhodes, 416 U.S.

L.Ed. 2d 90 (1974) ..ccccccccccccccee 17

Scott v. Moore, 680 F.2d

979 (Sth Cir. 1982), rev'd.

on other grounds, U.S.

» 863 8.Ce. 395s:

L.Ed.2d (1963) -ccccccececes cco 26

Smith v. Cherry, 489 F.2d

1098 (7th Cir. 1973), cert.

denied, 417 U.S. 910, 94

S.Ct. 2607, 41 L.Ed.2d

Ba EAER a6. bes cha decleccoscecorvcors °

State of Ohio v. Peterson,

Lowr Rall, BEtc., 585 F.2d

454 oth Cir. 19

Ted ecccccccecccecce

Thompson v. Kerr-McGee

Refining Corporation,

660 ‘34 EELS (10th

Cir. BE seobeecweeooceBocoececccececoce

United Brotherhood of

Carpenters and | Joiners

of America v. Scott,

U.S. _, ~ 103 S.Ct.

“L.Ed. 2d

Ward v. Connor, 657 F.2d

45 (4th Cir. 1981), cert.

denied, 455 U.S. 907, 102

S.Ct. 1253, 71 L.Ba.2d

a REMERP eeecscocesceeccoesececeeos

Warth v. Seldin, 422 U.S.

" BeGee 21497, $5

Toto Oe SES CASTS) cccccccecececcees

STATUTES:

28 U.S.C. $1254... cc cccccces cecceee

28 U.S.C. SlIZZLi nc cccccccccccccvece

6

15

17

17

16

15

17

12

2B U.S.C. $l13EZ. cc cccccccccesccs .

42 U.S.C. $19BS.wccccveccccccccce

42 U.S.C. $1988... ccccccces ol, 10,

13,

42 U.S.C. §1986...5....06- ccvceses

OTHER AUTHORITIES CITED:

Rule 12(b), Fed.R.Civ.P........ 2,

Rule 56, Fed.R.Civ.P...cceeeees 2,

12,

12,

17

17

OPINIONS BELOW

An oral opinion was issued by the

United States District Court for the

District of Colorado on May 12, 1982.

An opinion (not yet reported) was”

issued by the United States Court of

Appeals for the Tenth Circuit on

November 7, 1983.

JURISDICTION

The date of the judgment sought to be

reviewed, and the time of its entry, is

November 7, 1983.

Jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

United States Code, Title 42

§1985. Conspiracy to interfere with

civil rights.

(3) Depriving persons of rights or '

privileges. If two or more persons in

any State or Territory conspire, or go

in disguise on the highway or on the

premises of another, for the purpose of

depriving, either directly or indirectly,

any person or class of persons of the

equal protection of the laws, or of

equal privileges and immunities under

the laws, or for the purpose of prevent-

ing or hindering the constituted author-

ities of any State or Territory from

giving or securing to all persons within

such State or Territory the equal pro-

tection of the laws; or if two or more

persons conspire to prevent by force,

intimidation, or threat, any citizen who

is lawfully entitled to vote, from giving

his support or advocacy in a legal manner,

toward or in favor of the election of any

lawfully qualified person as an elector

for President or Vice-President, or as a

member of Congress of the United States;

or to injure any citizen in person or

property on account of such support or

advocacy; in any case of conspiracy set

forth in this section, if one or more

persons engaged therein do, or cause to

be done, any act in furtherance of the

10

object of such conspiracy, whereby another

is injured in his person or property, or

deprived of having and exercising any

right or privilege of a citizen of the

United States, the party so injured or

deprived may have an action for the re-

covery of damages, occasioned by such

injury or deprivation, against any one or

more of the conspirators.

ll

STATEMENT OF THE CASE

This case was filed in the United

States District Court for the District

of Colorado on October 20, 1981. The

amended complaint (see Appendix) includes

claims for relief under 42 U.S.C. §§1983,

1985, and 1986 (jurisdiction under 28

U.S.C. §§1331 and 1343), and Colo. Rev.

Stat. §24-34-301 et seg. (pendent juris-

diction).

On May 12, 1982, the District Court

issued an oral opinion (see Appendix for

transcript) dismissing the case by treat-

ing the defendants' motion to dismiss the

amended complaint as a motion for summary

judgment without following the procedures

set forth in Rules 12(b) and 56, Fed.R.

Civ.P. Final judgment was entered on

May 20, 1982. An appeal was filed on

June 18, 1982.

12

On November 7, 1983, the United

States Court of Appeals for the Tenth

Circuit issued an opinion (see Appendix)

affirming the judgment of the District

Court. The Court of Appeals ruled that

handicapped persons do not constitute a

class entitled to the protection of 42

U.S.C. §1985(3); that nonracial classes

are not entitled to the protection of 42

U.S.C. §1985(3); that the Director of

the Colorado Civil Rights Division has

absolute official immunity from suit

under 42 U.S.C. §1983; and that the

District Court did not abuse its dis-

cretion by declining to exercise pen-

dent jurisdiction over the claim for

relief based on Colo. Rev. Stat.

§24-34-301, et seq.

13

ARGUMENT

l. In ruling that handicapped persons

do not constitute a class entitled to

the protection of 42 U.S.C. §1985(3), the

Court of Appeals has rendered a decision

in conflict with the decision of another

federal court of appeals on the same

matter. People by Abrams v. 11 Cornwell

Company, 695 F.2d 34 (2nd Cir. 1982).

2. In ruling that nonracial classes

are not entitled to the protection of

42 U.S.C. §1985(3), the Court of Appeals

has rendered a decision in conflict with

decisions of other federal courts of

appeals on the same matter. E.g., Keating

v. Carey, 706 F.2d 377 (2nd Cir. 1983);

Scott v. Moore, 680 F.2d 979 (5th Cir.

1982), rev'd. on other grounds, U.S.

, 103 S.Ct. 3352, L.Ed.2d

14

(1983); Ward v. Connor, 657 F.2d 45 (4th

Cir. 1981), cert. denied, 455 U.S. 907,

102 S.Ct. 1253, 71 L.Ed.2d 445 (1982);

Life Insurance Company of North America

v. Reichardt, 591 F.2d 499 (9th Cir.

1979); Novotny v. Great American Federal

Savings & Loan Association, 584 F.2d 1235

(3rd Cir. 1978), rev'd. on other grounds,

442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed. 2d

957 (1979); Means v. Wilson, 522 F.2d 833

(8th Cir. 1975), cert. denied, 424 U.S.

958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976);

Glasson v. City of Louisville, 518 F.2d

899 (6th Cir. 1975), cert. denied, 423

U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 258

(1975); Smith v. Cherry, 489 F.2d 1098

(7th Cir. 1973), cert. denied, 417 U.S.

910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974);

Harrison v. Brooks, 446 F.2d 404 (lst

Cir. 1971). The Court of Appeals has also

15

rendered a decision in conflict with its

own previous decision on the same matter.

Dry Creek Lodge, Incorporated v. United

States, 515 F.2d 926 (10th Cir. 1975),

cert. denied, 449 U.S. 1118, 101 S.Ct.

931, 66 L.Ed.2d 847 (1981).

3. In ruling that handicapped persons

do not constitute a class entitled to the

protection of 42 U.S.C. §1985(3), and

that nonracial classes are not entitled

to the protection of §1985(3), the Court

of Appeals has decided important ques-

tions of federal law which have not been,

but should be, settled by this Court.

Griffin v. Breckenridge, 403 U.S. 88, 91

S.Ct. 1790, 29 L.Ed.2d 338 (1971); United

Brotherhood of Carpenters and Joiners of

America v. Scott, U.S. , 103

S.Ct. 3352, L.Ed. 2d (1983).

4. The Court of Appeals erred in per-

mitting the District Court to dismiss the

16

case by treating the defendants' motion

to dismiss the amended complaint as a

motion for summary judgment without

following the procedures set forth in

Rules 12(b) and 56, Fed.R.Civ.P. Conley

v. Gibson, 355 U.S. 41, 78 S.Ct. 99,

2 L.Ed.2d 80 (1955); Scheuer v. Rhodes,

416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed. 2d

90 (1974); Warth v. Seldin, 422 U.S. 490,

95 S.Ct. 2197, 45 L.Ed.2d 343 (1975);

Adams v. Campbell County School District,

483 F.2d 1351 (lOth Cir. 1973); Franklin

v. Oklahoma City Abstract & Title Company,

584 F.2d 964 (lOth Cir. 1978); State of

Ohio v. Peterson, Lowry, Rall, Etc., 585

F.2d 454 (lOth Cir. 1978); Hansbury v.

Regents of University of California, 596

F.2d 944 (10th Cir. 1979); Thompson v.

Kerr-McGee Refining Corporation, 660 F.2d

1380 (10th Cir. 1981). Therefore, the

17

Court of Appeals has so far departed

from the accepted and usual course of

judicial proceedings, and so far sanc-

tioned such a departure by the District

Court, as to call for an exercise of this

Court's power of supervision.

Respectfully submitted,

DAVID L. SMITH

2036 Dexter Street

Denver, Colorado 80207

(303) 620-7012

ATTORNEY FOR PETITIONER

18

19

11-7-83 82-1747

UNITED STATES COURT OF APPEALS

For the Tenth Circuit

SLIP OPINION

A-1

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRC IT

82-1747

ROBERT L. WILHELM,

Plaintiff-Appellant,

Ve Appeal From The

United States

District Court

For The

)

)

)

)

)

CONTINENTAL TITLE )

COMPANY, a Colorado )

corporation, ANGELO J. ) District Of

VISCONTI, individually ) Colorado (D.C.

and in his capacity as ) Civil No.

President of Continental ) 81-F-1845)

Title Company, and )

DOROTHY J. PORTER, )

individually and in )

her official capacity )

as Director of the )

Colorado Civil Rights )

Division, )

)

)

De fendants~Appellees.

David L. Smith, Denver, Colorado, for

Plaintiff-Appellant.

A-2

Perry L. Goorman of Eiberger, Stacy &

Smith, Denver, Colorado, for Defendants-

Appellees Continental Title Company and

Angelo J. Visconti.

Timothy R. Arnold, Assistant Attorney

General, State of Colorado (J. D. Mac-

Farlane, Attorney General, Charles B.

Howe, Deputy Attorney General, Joel W.

Cantrick, Solicitor General, and William

Levis, Assistant Attorney General, on the

brief), Denver, Colorado, for Defendant-

Appellee Dorothy J. Porter.

Before SETH, Chief Judge, McKAY, Circuit

Judge, and BOHANON, District Judge’.

SETH, Chief Judge.

*Honorable Luther L. Bohanon, United

States Senior District Judge for the

Northern, Eastern and Western Districts

of Oklahoma, sitting by designation.

A-3

Robert L. Wilhelm appeals the dis-

missal of his claims asserted under 42

U.S.C. § 1985/3), and Colo. Rev. Stat.

§ 24-34-301, against defendants-appellees

Continental Title Insurance Company and

its president, Angelo J. Visconti. Claims

under § 1983 were alleged against Dorothy

J. Porter, Director of the Colorado Civil

Rights Division. The federal causes were

dismissed for failure to state a cause of

actioOn--that a handicap was not a basis

for a claim under 42 U.S.C. § 1985 or

§ 1986. The cause against defendant

Porter was dismissed on the ground that

she had official immunity. The cause

under the state statute was dismissed by

the trial court on the ground that there

was nothing to support the pendent claim

and that there was pending in the state

courts a suit asserting the very same

cause of action.

A-4

Appellant worked as a real estate

title insurance salesman at Continental

for a year and a half before being pro-

moted to branch office manager in January.

In March he learned he had multiple

sclerosis, advised his employer, in less

than a month he was demoted, and in May

discharged. Appellant filed an employment

discrimination charge based on handicap

with the Colorado Civil Rights Commission.

The Commission determined that there was

probable cause to believe his charges

were true but defendant Porter closed the

file due to failure of conciliation.

The questions presented on appeal are:

whether handicapped persons constitute a

class entitled to the protection of § 1985;

whether the district court abused its

discretion in declining to exercise pen-

dent jurisdiction over the claim based on

A-5

Colo. Rev. Stat. § 24-34-301 et seg., and

whether Dorothy J. Porter has absolute

immunity from suit under 42 U.S.C. § 1983.

In his first claim for relief, appel-

lant invoked § 1985(3) by alleging that

he, as a handicapped person, was a member

of a class for which that section was

intended to provide a civil remedy.

Section 1985 has been interpreted in

Griffin v. Breckenridge, 403 U.S. 88, to

require that private conspiracies be based

On some type of class-based discriminatory

animus. The Court stated:

"The language requiring intent to

deprive of equal protection, or equal

privileges an mmunities, means

that there must be some racial, or

perhaps otherwise class-based,

invidiously discriminatory animus

behind the conspirators' action.

The conspiracy, in other words, must

aim at a deprivation of the equal

enjoyment of rights secured by the

law to all.”

(Emphasis supplied.)

A-6

The district court based its dismissal

of the § 1985(3) claim on appellant's

failure to establish that the alleged

conspiracy was motivated by a class-based

invidiously discriminatory animus. Re-

ferring to the decision in Lessman v.

McCormick, 591 F.2d 605 (10th Cir.), the

district court said, "It is not sufficient

to state a claim under Section 1985(3) to

allege individual discriminatory animus

or even group animus unless the discrim-

ination can be said to be invidious."

In Lessman, we denied appellant's claim

under § 1985 that the class of debtors of

which she was a member was subject to

invidious discrimination because, as in

Ward v. St. Anthony Hospital, 476 F.2d 671

(10th Cir.), the allegations did not show

the plaintiff to be the object of class-

based invidiously discriminatory animus.

A-7

We cited Harrison v. Brooks, 519 F.2d 1358

(lst Cir.), for the requirement that the

criteria for the definition of the class

must be invidious and the conspiracy

against plaintiff was "because" of class

membership.

This appeal, as mentioned, reaches us

on the dismissal of the § 1985 cause for

failure to state a claim, and must be

examined under the applicable standard.

We have some serious doubts as to

whether there can be a conspiracy between

defendant Visconti and the corporation he

heads but the issue was not raised in the

corporate-officer context, and the trial

court did not pass on the question, and

we will not do so.

In United Brotherhood of Carpenters v.

Scott, __—_—sdUUXw Ss , 51 'ULSLL.W. 5173,

the Court was considering a conspiracy

directed by a pro-union group against a

A-8

non-union group. The Court made it clear

that § 1985(3) did not cover conspiracies

motivated by economic, political or com-

mercial animus. The opinion (as in Grif-

fin v. Breckenridge, 403 U.S. 88), con-

tains a significant analysis of reasons

why 42 U.S.C. § 1985(3) was enacted and

the conditions sought to be remedied. The

opinion puts emphasis on the nature of the

animus and motivation as to which the

legislation was directed, and the groups

sought to be protected. The Court des-

cribes conditions prevailing in the South

in 1871, and the debates in Congress

centering on the broad scope of the pro-

posed statute as originally introduced.

The Court in Scott said:

"As we interpreted the lecislative

history 12 years ago in Griffin, the

narrowing amendment ‘centered

entirely on the animus or motivation

that would be required. ...'"

A-9

The Court accords great weight to the

"limiting" or narrowing amendment which

was adopted and altered the bill as intro-

duced.

The Court in Scott quotes from Griffin

as to the importance of the amendment:

""The constitutional shoals that

would lie in the path of inter-

preting § 1985(3) as a general

federal tort law can be avoided by

giving full effect to the congres-

sional purpose--by requiring, as an

element of the cause of action, the

kind of invidiously discriminatory

motivation stressed by the sponsors

of the limiting amendment. See the

remarks of Representatives Willard

and Shellabarger, quoted supra, at

100. The language requiring intent

to deprive of equal protection, or

equal privileges and immunities,

means that there must be some racial,

Or perhaps otherwise class-based,

invidiously discriminatory animus

behind the conspirators' action. The

conspiracy, in other words, must aim

at a deprivation of the equal enjoy-

ment of rights secured by the law to

all.' Id., at 102 (footnotes

omitted)." (Emphasis supplied.)

The Court in Scott continued as to the

above quotation:

A-10

"This conclusion was warranted by the

legislative history, was reaffirmed

in Novotny, supra, and we accept it

as the authoritative construction of

the statute."

Of the case before it the Court said:

"Both courts below answered that

question; both held that the section

not only reaches conspiracies other

than those motivated by racial bias

but also forbids conspiracies against

workers who refuse to join a union.

We disagree with the latter conclu-

sion and do not affirm the former."

The Court in Scott discussed at some length

the conditions prevailing in 1871, the

actions of the Klan and again the "narrow-

ing amendment," and said:

"The narrowing amendment, which

changed § 1985(3) to its present form,

was proposed, debated, and adopted

there, and the Senate made only tech-

nical changes to the bill. Senator

Edmunds's views, since he managed the

bill on the floor of the Senate, are

not without weight. But we were

aware of his views in Griffin, 403

U.S., at 102 n. 9, and still withheld

judgment on the question whether

§ 1985(3), as enacted, went any far-

ther than its central concern--com-

batting the violent and other efforts

of the Klan and its allies to resist

A-11l

and to frustrate the intended

affects of the Thirteenth, Four-

teenth, and Fifteenth Amendments.

Lacking other evidence of congres-

sional intention, we follow the same

course here."

As to private conspiracies, the Court

has thus held that § 1985(3) protects

against rights under the Thirteenth Amend-

ment and the right to travel guaranteed by

the Federal Constitution, also certain

equal protection rights not limited by the

constraints of the Fourteenth Amendment as

to state action. The Court has held that

§ 1985(3) does not protect under the First

Amendment against wholly private conspir-

acies.

In summary as to the Scott opinion, we

find nothing therein to give any encourage-

ment whatever to extend § 1985 to classes

other than those involved in the strife in

the South in 1871 with which Congress was

then concerned. In fact from Scott we get

A-12

a signal that the classes covered by

§ 1985 should not be extended beyond

those already expressly provided by the

Court.

In the case before us the Amended

Complaint alleges that plaintiff had a

particular and serious disease which did

or would have physical manifestations.

He advised the company of his condition

and asserts he was demoted and fired as a

consequence. It is apparent that differ-

ent individuals are handicapped in vastly

different ways, for different periods of

time, and to very different degrees or

extent. The variations in each category

are infinite and as a consequence the term

"handicapped" does not have a definition

capable of a reasonably precise applica-

tion for the purposes before us. The

plaintiff alleged his “membership in a

Class of handicapped persons." Plaintiff

A-13

asserts that "(t]he criteria defining the

class of handicapped persons are invidious

under Colorado and federal law." The Com-

plaint does not contain a description of

a class of persons or group that is suffi-

ciently definite or precise to set against

the "class of persons" terminology in

§ 1985(3). There is no ascertainable

class described in the Amended Complaint

for the purposes under consideration

although there may be for other purposes.

Plaintiff declined to further amend and

asked for a final judgment.

We feel compelled by United Brotherhood

of Carpenters v. Scott, ___—_—i-U.S. ee,

51 U.S.L.W. 5173, and by Griffin v. Breck-

enridge, 403 U.S 88, to hold that even if

there could be here developed by further

pleading a class of handicapped persons

with suffient conditions or factors in

common derived from their physical condi-

A-14

tion to be ascertainable or indentifiable,

it could not come within the provisions of

42 U.S.C. § 1985(3).

In our above examination of the opinion

in United Brotherhood of Carpenters v.

Scott, __—Ss U.S. ____, 51 :*ULS.L.W. 5173,

we described the reference to limiting

opinions; the emphasis upon the conditions

that gave rise to § 1985(3); and more

particularly the classes or groups which

were then involved in the struggle. The

nature of groups so involved, as described

in Scott, must influence greatly any

analysis of the scope of the act. The

adoption of the "limiting amendment” to

sort out incidents with no animus or moti-

vation of the kind under consideration is

also a dominating factor.

We are concerned with a statute enact-

ed for a particular purpose and to meet

par-ticular conditions. The rights and

| A-15

privileges sought to be protected (as

contrasted to the "class") are diverse and

with the constitutional overtones are to

be construed broadly. However, the

classes or groups to be protected are

instead to be derived from statutory con-

struction. This in our view the Supreme

Court has done in Scott and Griffin. From

Scott we repeat part of a quotation appear-

ing above. Thus after referring to

Griffin and noting that the Court there

withheld judgment as to whether § 1985(3)

"went any farther than its central concern

--combatting the violent and other efforts

of the Klan and its allies to resist and

to frustrate the intended affects of the

Thirteenth, Fourteenth, and Fifteenth

Amendments. Lacking other evidence of

congressional intention, we follow the

same course here." Thus the Court also

withheld judgment, but the significant

A-16

part of the statement is that the refusal

to go farther was placed on the reason--

lacking other evidence of congressional

intention. This came after the examina-

tions of such history-evidence in Griffin

and Scott, as well as prior cases. We

must conclude that a class of “handicapped

persons" was not in the contemplation of

Congress in 1871, and was not included as

a class in what is now § 1985(3). See Cain

v. Archdiocese of Kansas City, Kansas,

508 F. Supp. 1021 (D. Kan.).

The appellant urges that it was error

for the trial court to dismiss the pendent

cause of action based on the state statute.

The Supreme Court in United Mine Workers

v. Gibbs, 383 U.S. 715, held that pendent

jurisdiction is "a doctrine of discretion,"

and that "[i]ts justification lies in con-

siderations of judicial economy, conven-

ience and fairness to litigants ...,”

A-17

and "[n]eedless decisions of state law

should be avoided... ." The Court also

held that if the federal claims were dis-

missed before trial the pendent claims

should be dismissed. See also Clappier v.

Flynn, 605 F.2d 519 (10th Cir.), and our

prior cases.

We find no error in the dismissal of

the pendent claim.

The district court dismissed the § 1983

claim against Dorothy J. Porter on the

basis of her absolute official immunity.

The claim was brought after she closed the

appellant's file due to failure of concil-

iation.

In dismissing the claim, the district

court relied on Butz v. Economou, 438 U.S.

478, and Johnston v. Herschler, 669 F.2d

617 (10th Cir.). The Court in Butz deter-

mined that federal agency officials whose

A-18

duties involve adjudicatory or prosecu-

torial functions are absolutely immune

from suits for damages. The Court said:

"We think that adjudication within

a federal administrative agency

shares enough of the characteristics

of the judicial process that those

who participate in such adjudica-

tion should also be immune from

Suits for damages ....

"We also believe that agency offi-

cials performing certain functions

analogous to those of a prosecutor

should be able to claim absolute

immunity with respect to such acts."

438 U.S. at 512-13, 515.

The Cou.* did not distinguish between

state and federal officials for purposes

of immunity:

"(W]e deem it untenable to draw a

distinction for purposes of immunity

law between suits brought against

state officials under § 1983 and

Suits brought directly under the

Constitution against federal offi-

cials."

Id., at 504

A-19

The district court followed Butz and

our opinion in Johnston (Governor of Wyo-

ming acting in adjudicatory capacity is

absolutely immune from § 1983 liability)

to find that "an adjudication within either

a federal or state administrative agency

is immune from suits for damages."

With respect to Dorothy Porter's duties

under Colo. Rev. Stat. § 24-34-301 et seq.,

the district court found:

"As Director of the Colorado Civil

Rights Division, Ms. Porter is

required by statute to investigate

charges of discrimination, make a

finding of probable cause and report

to the commission when conciliation

efforts fail. Thus, she is in a

position in the state administra-

tive process that is similar to

that of a judge, hearing officer

Or prosecutor. It is therefore

logical that she should enjoy

immunity in that regard."

II R. 10.

The district court did not err in con-

cluding that Dorothy Porter has absolute

A-20

immunity. The adjudicatory and prosecu-

torial nature of her responsibilities is

clear.

The judgment of the district court is

affirmed.

A-21

No. 82-1747 - ROBERT L. WILHELM v.

CONTINENTAL TITLE CO., etc., et al.

McKAY, Circuit Judge, concurring:

While I agree generally with the

opinion of the court, I add this concur-

rence to stress the importance of limiting

the court's decision solely to the facts

before us. Although I agree that United

Brotherhood of Carpenters v. Scott,

U.S. __, 51 U.S.L.W. 5173 (July 5, 1983)

(5-4), does not leave room for the exten-

sion of § 1985(3) to private conspiracies

involving the facts of this case, I do not

read Scott to foreclose the application of

§ 1985(3) to conspiracies where the animus

is directed toward gender-based classifi-

cations or political groups, e.g.,

"Republicans". Scott at 5177. The five-

member majority's refusal in Scott to

affirm the Fifth Circuit's conclusion that

A-22

classes other than race might be action-

able under § 1985(3) should not be read

as broadly as this court has attempted

to do.

Since the case before us does : >t

present issues of animus directed toward

Classifications based upon gender,

religion or national origin, we leave

for another day the resolution of whether

a properly pleaded set of facts might

bring a class other than race within

§ 1985(3) and Scott.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 81-F-1845

ROBERT L. WILHELM,

)

)

Plaintiff, ) REPORTER'S

)

) TRANSCRIPT

)

) STATUS

CONTINENTAL TITLE )

COMPANY, et al., ) CONFERENCE

)

\

Defendants.

Proceedings before the HONORABLE

SHERMAN G. FINESILVER, Chief Judge,

United States District Court for the

District of Colorado, beginning at 8:55

o'clock a.m., on the 12th day of May,

1982, in Courtroom 201, United States

Courthouse, Denver, Colorado.

APPEARANCES

DAVID L. SMITH, Attorney at Law, 2036

Dexter Street, Denver, Colorado, appearing

on behalf of the Plaintiff.

A-24

PERRY L. GOORMAN, Attorney at Law,

Eiberger, Stacy & Smith, 410 Seventeenth

Street, Suite 2390, Denver, Colorado,

appearing on behalf of Defendants

Continental Title Company and Angelo

Visconti.

WILLIAM LEVIS, Assistant Attorney

General, Human Resources Section, 1525

Sherman Street, Third Floor, Denver,

Colorado, appearing on behalf of Defen-

dant Dorothy Porter.

PROCEEDINGS

THE COURT: Wilhelm vs. Continental

Title, please. Good morning, gentlemen,

please. May I have your names, please.

MR. SMITH: Your Honor, David Smith on

behalf of the Plaintiff.

MR. GOORMAN: Perry Goorman on behalf

of Continental Title Company and Angelo

Visconti.

A-25

MR. LEVIS: William Levis on behalf of

Dorothy Porter.

THE COURT: Any lawyers who have any

area of responsibility are here?

MR. GOORMAN: Yes.

THE COURT: Gentlemen, be seated,

please. I am going to enter some orders,

and I think you will have a reasonable

time. I take it this case has not been

settled; is that correct?

MR. SMITH: No, sir.

MR. LEVIS: That's correct.

THE COURT: This matter is set before

the Court for status conference this

morning. The Court has reviewed the

entire file, and the numerous pleadings

that have been filed. There are sixteen

motions.

We are very well in our second file in

this case that was filed in late 1981.

A-26

Mr. Wilhelm has filed a suit against

Continental Title Company, Mr. Visconti,

its President, and Ms. Porter, Director

of the Colorado Civil Rights Division, on

various employment discrimination charges.

On March 3lst, 1978, Mr. Wiihelm, a

branch office manager with Continental,

learned that he had multiple sclerosis.

In late April of 1978, Mr. Wilhelm was

demoted to the position of salesman, and

was ultimately discharged on May 30, 1978.

He claims that Continental and Visconti

conspired to discharge him from his job

because of his handicap in violation of

42 United States Code, Section 1985 and

1986. Continental maintains that Mr.

Wilhelm was discharged for unsatisfactory

job performance.

On June 9, 1978, Mr. Wilhelm filed a

charge of employment discrimination with

the Colorado Civil Rights Commission

A-27

which later determined that there was

probable cause to believe the charge was

true.

Defendant Dorothy Porter closed the

case, however, on June 1l, 1980 for fail-

ure of conciliation efforts. Mr. Wilhelm

charges that Porter acted beyond the

scope of her authority and in violation

of 42 United States Code, Section 1983 and

C.R.S. 1973, Section 24-34-1011.

Specifically, Wilhelm maintains that

Ms. Porter deprived him of his right to

expect to be able to continue his employ-

ment with the company without being dis-

criminated against and without having an

Opportunity for redress of his charge of

employment discrimination against the

company without a hearing on the merits.

In addition to costs and attorney's

fees, Mr. Wilhelm seeks compensatory and

punitive damages against all defendants.

A-28

We have mentioned that there are six-

teen motions outstanding. There are many

of these motions which are directed to

Plaintiff's counsel's Anti-Discrimination

Act claim. These motions touch upon the

second claim of Plaintiff's Second Amen-

ded Complaint.

This claim is based upon the Colorado

Anti-Discrimination Act of the State of

Colorado, C.R.S. 1973, 24-34-301, as

amended effective July lst, 1979.

The Defendants have moved to dismiss

this claim for relief on various grounds

including lack of jurisdiction, failure

to state a claim upon which relief can be

granted, and expiration of the statute of

limitations. Also Defendants move to

strike Plaintiff's demand for a jury trial

and request for attorney's fees under this

claim.

A-29

The Court has reviewed the file, the

confusing mass of documents submitted by

the parties to try to see exactly the

posture of this case. We are concerned

about the nature and status of the pend-

ing state court proceedings in the state

Supreme Court and the state District

Court, and the irregular course of history

that has existed in those respective

courts dealing with this litigation.

Because the issues involved in Plain-

tiff's claim for relief under the Colo-

rado Anti-Discrimination Act present

many questions of first impression under

State law which are currently pending in

actions by the same parties before the

Denver District Court and the Colorado

Supreme Court, we decline jurisdiction

of this pendant claim on the basis of

this Court's broad discretionary powers

A-30

in this area. Helpful is United Mine

Workers v. Gibb, 383 U.S. 715, 1966, and

also the rationale and we believe the

logic that is set forth in the Colorado

Water River Conservation District v.

United States, 96 Supreme Court 1236.

Admittedly, that is a case that dealt

with not only dismissal, but with absten-

tion. However, we are of the view that

the rationale and some of the expressions

of the Supreme Court in that case, which

reversed the Tenth Circuit, are helpful

here.

We do not feel that the Federal Court

should be the first court to construe

state statutes that go into the body

politic and the very organization of a

state government without affording the

state forums the opportunity to address

themselves to those issues, and we are of

A-31

the view that those courts, the state

District Court, the state Supreme Court,

are directing their attention to resolu-

tion of many other matters that are sub-

mitted to this Court for resolution.

State law with regard to the Colorado

Anti-Discrimination Act is very unsettled.

Much judicial energy has already been

expended as a result of actions filed by

Plaintiff in state court on the same

issues. We are of the view that it

involves an unnecessary exercise of

judicial energy and a total lack of

judicial economy to have this Court dup-

licate much of what has already been done

by the state courts.

Accordingly, the Motion to Dismiss the

Colorado Anti-Discrimination Act claim

for lack of jurisdiction filed by Defen-

dants Visconti and Continental Title is

A-32

hereby granted as to all Defendants, and

the second claim for relief is stricken

from Plaintiff's Second Amended Complaint.

As a result of this action, the

following motions are moot: Motion for

Stay filed by Defendants Visconti and

Continental Title, Motion to Strike

prayer for punitive damages filed by

Defendants Visconti and Continental Title;

Motion to Strike request for attorney's

fees filed by the same Defendants; Motion

to Strike Plaintiff's jury demand filed

by the same Defendants; and Motion to

Dismiss the Colorado Anti-Discrimination

Act claim for failure to state a claim

upon which relief can be granted filed by

the same Defendants.

The next motions are directed to

Plaintiff's Section 1985 and 1986 con-

Spiracy claims. Plaintiff's complaint

alleges that in Claim 1 the Defendants

A-33

Visconti and Continental Title engaged

in a conspiracy to discharge the Plain-

tiff from his employment with Continental

Title Company in violation of 42 United

States Code, Section 1985, and that

Defendants neglected or refused to use

their power to prevent the alleged acts

in furtherance of the conspiracy in

violation of 42 United States Code,

Section 1986.

In a plethora of motions filed here,

the Defendants seek to dismiss these

claims for lack of subject matter juris-

diction for failure to state a claim upon

which relief can be granted, and for

expiration of the applicable statute of

limitations.

We have considered the motions, the

briefs submitted by the parties, and the

Court will dismiss Claim 1 of Plaintiff's

A-34

Complaint for the following reasons:

To come within the ambit of Section 1985

(3), a complaint must allege five elements.

First, of a conspiracy; two, motivated

by racial or other class-based invidiously

discriminatory animus; third, for the

purpose of depriving, directly or indi-

rectly any person or class of persons of

equal protection of the laws or of equal

privileges and immunities under the laws;

four, that the conspirators committed some

act in furtherance of the conspiracy, and,

five, that the Plaintiff was either injur-

ed in his person or property or was

deprived of having and exercising any

right or privilege of a citizen of the

United States. Griffin v. Breckenridge,

403 U.S. 88 at 103-104 is helpful. A

defect in any one of these elements is

fatal to Plaintiff's claim.

A-35

In the instant case, the Plaintiff has

sufficiently pled a conspiracy between

Defendant Continental Title Company,

Defendant Visconti and other third parties

to survive a motion to dismiss. Plain-

tiff has not and cannot, however, demon-

strate that the conspiracy was motivated

by class-based invidiously discriminatory

animus as prescribed by Griffin.

It is not sufficient to state a claim

under Section 1985(3) to allege individ-

ual discriminatory animus or even group

animus unless the discrimination can be

said to be invidious. Lessman v.

McCormick, 591 F. 2d 605, 1979 Tenth

Circuit case.

The underlying principle here is the

governmental determination that some

groups require and warrant special federal

assistance in protecting their civil

A-36

rights. Classes that have awarded such

protection for the purposes of Section

1985(3) include race, sex and certain

political or religious groups.

In the Court's research we have been

unable to discover any cases -- and

Plaintiff has not cited any that we find

are persuasive -- which hold that handi-

capped persons constitute a class within

the meaning of Section 1985(3) as con-

strued by the Supreme Court in Griffin,

and the Tenth Circuit has been particu-

larly reluctant to enlarge the ambit of

1985(3). See Ward v. St. Anthony's

Hospital, 476 F. 2d 671, a 1973 Tenth

Circuit case. Also Cain, C-a-i-n, v.

Archdiocese of Kansas City, a Federal

District Court case from the District of

Kansas, 1981.

The Ward v. St. Anthony's Hospital case

involved a doctor's staff privilege at

A-37

St. Anthony's Hospital in Denver. The

allegation was that there was state

action because of licensure of the

hospital itself, and also because of the

use by the hospital of Hillburton federal

funds for construction of part of the

hospital and for equipment.

The Tenth Circuit in that case, in

upholding the District Court, filed very

strong strictures in regard to applica-

tion of the section in question.

We find no merit in Plaintiff's argu-

ment that he is a member of a statutorily

protected class under the Rehabilitation

Act, 29 United States Code, Section 701.

Such a claim is not sufficient to breathe

life into a cause of action under Section

1985(3), particularly where Plaintiff has

brought no cause of action under the Act.

A-38

Accordingly, the Motion to Dismiss for

failure to state a claim upon which relief

can be granted is hereby granted. Since

a valid allegation of class-based invidi-

ously discriminatory animus is also

necessary to state a claim for relief

under Section 1986, the Defendant's Motion

to Dismiss the Section 1986 claim is also

granted. No claim under Section 1986

will lie unless there is a valid claim

under Section 1985. Taylor v. Nichols,

558 F. 2d 561, a 1977 Tenth Circuit case.

It is therefore ordered that Claim l

of Plaintiff's Second Amended Complaint

is hereby dismissed as to all Defendants

and is stricken from the Complaint.

Motions directed to Plaintiff's Sec-

tion 1983 claim. The third claim for

relief in Plaintiff's Second Amended

Complaint is based on 42 United States

A-39

Code, Section 1983 and the Fourteenth

Amendment.

Defendant Dorothy Porter has moved to

dismiss this claim against her on the

grounds that she enjoys official immunity

from prosecution. Specifically, Ms.

Porter claims that is dismissing Plain-

tiff's state clain with the Colorado

Civil Rights Division, she was acting in

an administrative adjudicatory capacity

in accordance with C.R.S. 1973 24-34-306

(4) and Rule 4 of the regulations promul-

gated by the Commission.

We are of the view that an adjudication

within either a federal or state adminis-

trative agency is immune from suits for

damages. Please see Butz v. Economou,

438 U.S. 478, and also the case of

Johnson v. Herschler, Number 80-1342, a

Tenth Circuit case, January 21, 1982.

A-40

As Director of the Colorado Civil

Rights Division, Ms. Porter is required

by statute to investigate charges of dis-

crimination, make a finding of probable

cause and report to the commission when

conciliation efforts fail. Thus, she is

in a position in the state administrative

process that is similar to that of a

judge, hearing officer or prosecutor. It

is therefore logical that she should enjoy

immunity in that regard.

We conclude that Ms. Porter is immune

from prosecution under Section 1983. The

Motion to Dismiss the Section 1983 claim

is hereby granted. Claim 3 of Plaintiff's

Second Amended Complaint is dismissed as

to Defendant Porter and is hereby stricken.

As a result of our disposition of these

motions, the only claims remaining in this

lawsuit are the Section 1983 allegations

A-41

against Defendants Visconti and Contin-

ental Title Company. The Court directs

Plaintiff to file a Third Amended Com-

plaint reflecting these changes and

containing only the Section 1983 claim no

later than the close of business on

Friday, May 2lst, 1982. Defendants

Visconti and Continental Title shall file

an Amended Answer no later than the close

of business on Friday, May 28th, 1982.

There are remaining motions. The

Motion for Summary Judgment based on the

exclusivity provisions of the Colorado

Workman's Compensation Act filed by Defen-

dant Visconti and Continental Title is

hereby denied.

The consolidated Motions for Summary

Judgment based on the statute of limita-

tions filed by Defendants Visconti and

Continental Title are declared moot.

A-42

Because Defendant Porter has been dis-

missed out of this lawsuit entirely, the

following discovery motions filed against

her or on her behalf are moot: The

several motions compelling discovery VI,

VII, VIII, IX, X XI and Defendant Porter's

Motion for Protective Order.

The remaining Motions to Compel seek

discovery of personal financial informa-

tion and tax returns from the Defendant

Visconti who has filed a Motion for Pro-

tective Order prohibiting Plaintiff from

obtaining this information.

Plaintiff maintains the financial

information is relevant for his punitive

damages claim. Defendant asserts that

Plaintiff's request is overly broad and

burdensome. For purposes of punitive

damages, Plaintiff is entitled to dis-

covery of Defendant's present net worth.

A-43

The attorneys should be able to work

this problem out on their own. If they

can't however, the Court is prepared to

limit Plaintiff's discovery to Defendant

Visconti's present net worth.

It appears that prospects for settle-

ment in this case are not too bright.

The Court is of the view that this case

shall proceed for trial preparation.

Counsel shall notify the Court if settle-

ment is possible no later than the close

of business on Friday, May 2lst, 1982.

If counsel are unable to settle this

matter, the Court reaffirms the trial date

on the Court's three week calendar com-

mencing June 7th, 1982. The court will

notify counsel as soon as possible

regarding a firm trial date.

The Court directs that those items

that are set forth I believe in Paragraph

A-44

10 of the pretrial order shall be filed

no later than the close of business on

Friday, May 2lst.

The items listed in Paragraph 10B of

the pretrial order, the witness and

exhibit lists, trial briefs, other

matters, are to be filed with the clerk's

office no later than the close of busi-

ness on Thursday, June 3rd, 1982.

Mr. Smith, do you understand the

ruling of the Court, please?

MR. SMITH: Your Honor, the Court has

made quite a few rulings in a short amount

of time. I would imagine I will have to

consult some sort of written order to be

placed in the file.

THE COURT: I am not intending to have

any written order, counsel.

MR. SMITH: Okay. I think I basically

have it down. There was one point that I

A-45

wanted to ask the Court about. In connec-

tion with the Court's rulings on the

motions, various motions to dismiss, I

understand -- I think I understand -- that

all of the claims brought by the Plaintiff

in this case in the Second Amended Com-

plaint have been dismissed with the

exception of the third claim, the 1983

claim, and Defendant Porter has been dis-

missed from that claim. Is that correct?

THE COURT: That's correct.

MR. SMITH: When the Court says the

Defendant Porter has been dismissed from

the claim, does that mean only in her

individual capacity or is the Court also

Saying that the Colorado Civil Rights

Division is dismissed?

THE COURT: I am going to dismiss the

Colorado Civil Rights Division also.

A-46

MR. SMITH: In that case, your Honor,

that only leaves two Defendants in the

case; that would be Defendant Continental

Title Company and Angelo Visconti, who is

the President of that company.

THE COURT: That's correct.

MR. SMITH: And under those circum-

stances there is no state action, so I

can't amend the complaint to allege state

action under 1983.

THE COURT: Counsel, that's how this

Court sees the issues joined in this case.

Now, if there is any other approach --

MR. SMITH: Well, maybe I should give

the Court a preview. If I did amend the

complaint to a 1983 action against those

two defendants, then I would have to con-

fess that no state action exists, and

therefore no cause of action. Presently

there is no 1983 suit against those two

A-47

defendants, and I don't perceive that I

can file a 1983 case against Continental

Title Company and Angelo Visconti, so I

have no case against them, and I don't

want to use the Court's time to file a

1983 case against purely private plain-

tiffs because there is no case.

MR. GOORMAN: If I may, your Honor.

THE COURT: Please.

MR. GOORMAN: I would concur with Mr.

Smith's statements as far as a potential

claim, I think, under 1983 against those

defendants because there is no state

action.

I think the problem is in the first

complaint there was a little bit of vague-

ness in who the third complaint applied

to, and that's why I, in the motions to

dismiss, obviously to protect my clients,

responded just to cover them. Although I

A-48

didn't feel that he, Mr. Smith, was

actually alleging it, I just wasn't sure

because of the vagueness.

I would concur there is not any 1983

claim as far as I can see. They are just

a separate corporaton, and he is an

officer and there is no involvement with

the state whatsoever, and I don't think

there is such a claim. If Mr. Smith

wants to --

THE COURT: Counsel, do you care to

make any additional statement?

MR. LEVIS: I have no statement, your

Honor.

THE COURT: Counsel, the only potential

claim could be if there is any coloration

of any state law or any involvement or

nexus between Continental, Visconti and

the State of Colorado.

A-49

MR SMITH: Well, that's the question

then that I would get into, your Honor,

but the Court has dismissed the conspir-

acy claim in this case.

Of course the conspiracy action can be

brought under 1983 as well as under 1985.

THE COURT: In the state court.

MR. SMITH: -Is the basis for the

Court's dismissal of the conspiracy

action -- does that preclude counsel from

-- or the Plaintiff -- from bringing a

conspiracy action under 1983 as far as the

Court is concerned?

THE COURT: Counsel, I am not going to

prejudge. I mean I have labored hard in

trying to bring some rationale out of

this. The only potential claim I believe

you have in this case is if there is any

connection of Visconti and Continental

with the State of Colorado, and Ward v.

St. Anthony's Hospital is very strong

A-50

against you in that regard, you under-

stand. That is the only potential area

of recovery that you have got in Court.

This Court is not inclined to grant

any Rule 54 order in this case for an

appeal on less than an entire totality of

the subject matter.

Now, keep in mind that the state court,

a state court does have 1983 jurisdiction.

MR. SMITH: Well, no 1983 case has been

pled in the state court.

THE COURT: Do you understand the state

courts do have jurisdiction. Now, I don't

know what that does to any amendment you

might seek to proceed with in the state

court.

MR. SMITH: Well, your Honor, at the

present time, as the Court may be aware,

»

“

that the state court case is hung up in

the Supreme Court on writs of prohibition,

and, frankly, I see that as a futile

A-51

effort to try to go to the state court at

this particular time to attempt to amend

the complaint to allege a 1983 action.

We have been around Robin Hood's barn,

so to speak, on that in that case, and I

don't believe that it would be useful to

go further with that matter.

If I could just ask the Court, is the

sole basis for the Court's decision in

relation to the 1985 claims of this case

that there is no class-based discrimina-

tion shown under Griffin v. Breckenridge?

Is that the sole basis?

THE COURT: Counsel, I have given to

you the best rationale I can. However,

the Court reserves enlarging on this

opinion at a later time should a request

be made for a transcript.

The Court may add to it, and also the

Court may enlarge upon it as the case

A-52

might be, but, counsel, I have given you

the Griffin v. Breckenridge case, Lessman

v. McCormick case, that are quite helpful.

I have given you the Ward v. St. Anthony's

case, and also Cain v. Archdiocese, and

these are rather clear cases in regard to

what issues are viable here.

And the Court is of the view that the

only potential is a 1983 claim, and that

is if you could bring it within some ambit

of state -- any nexus between the State of

Colorado --

MR. SMITH: In that case, your Honor, I

do not retract any statement that I have

made in regard to bringing a 1983 action

solely against Continental Title Company

and Angelo Visconti.

However, I will state to the Court that

if I can satisfy in my own mind that there

is a colorable claim against Continental

A-53

Title Company and Angelo Visconti

because of the involvement of the State

in this case, and that therefore 1983

action can be brought, if I can satisfy

myself that I can in good conscience bring

a suit of that type, I may very well amend

the complaint by May 2lst.

THE COURT: I have asked-.that it be

filed -- that you further amend the com-

plaint by that date. Please read the

Ward v. St. Anthony Hospital case, though.

That deals with the connection and what

nexus there must be between actions by the

State of Colorado and the entity that is

claimed to have discriminated.

So that there could be a determination

if there has been any state involvement.

Please.

MR. GOORMAN: Assuming for purposes of

argument that the Plaintiff does file an

A-54

amended -- Third Amended Complaint, your

Honor, we have until Friday, May 25th in

which to file an Answer. Would that be

without prejudice to any motions to dis-

miss as well?

THE COURT: I will ask you to file an

unequivocal Answer without prejudice to

filing any other Rule 12 or other motions.

MR. GOORMAN: Thank you. Very good.

THE COURT: I want to keep the case at

being at posture of moving along. Thank

you very much.

(Whereupon, this hearing was then con-

cluded at the hour of 9:20 o'clock a.m.

this date.)

REPORTER'S CERTIFICATE

I, Suzanne M. Claar, Certified Short-

hand Reporter and Official Reporter to

this Court, do hereby certify that I was

present at and reported in shorthand the

A-55

proceedings in the foregoing matter;

that thereafter my shorthand notes were

reduced to typewritten form under my

Supervision, comprising the foregoing

official transcript; further, that the

foregoing official transcript is a full

and accurate record of the proceedings

in this matter on the date set forth.

Dated at Denver, Colorado, this 14th

day of May, 1982.

{fs/ Suzanne M. Claar

Suzanne M. Claar, RPR

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 81-P-1845

ROBERT L. WILHELM,

Plaintiff,

vs.

CONTINENTAL TITLE

COMPANY, a Colorado

)

)

)

)

)

)

)

)

corporation; ANGELO J. )

VISCONTI, individually )

)

)

)

)

)

)

)

)

)

)

and in his capacity as SECOND

President of Continental AMENDED

Title Company; and COMPLAINT

DOROTHY J. PORTER,

individually and in her

official capacity as

Director of the Colorado

Civil Rights Division,

Defendants.

COMES NOW the Plaintiff, Robert L.

Wilhelm ("Wilheim"), and states the

following claims for relief:

FIRST CLAIM

1. This is a claim for relief under

42 U.S.C. §§1985 and 1986. Jurisdiction

of the Court over the subject matter is

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invoked pursuant to 28 U.S.C. §§1331

and 1343.

2. In May of 1976, after working in

the real estate business since 1963,

Wilhelm accepted employment as a real

estate title insurance salesman with the

Defendant Continental Title Company

("Company").

3. In January of 1978, Wilhelm was

promoted to a position as manager of a

branch office of the Company.

4. On or about March 29, 1978, the

Company made a decision to hire, in the

future, the Defendant Angelo J. Visconti

("Visconti") as its President.

3- On or about March 31, 1978, Wilhelm

discovered, through medical diagnosis,

that he had multiple sclerosis. This

information was made known to the Company

and Visconti.

6. Beginning on or about March 3l,

1978, and continuing to the present, the

Company and Visconti engaged in a con-

spiracy with each other and with third

persons for the purpose of depriving,

either directly or indirectly, Wilhelm

of the equal protection of the laws, or

of equal privileges and immunities under

the laws. Specifically, the Company and

Visconti engaged in a conspiracy to dis-

charge Wilhelm from his employment with

the Company because of his membership in

a class ot handicapped persons. The

criteria defining the class of handi-

capped persons are invidious under Colo-

rado and federal law. One or more

persons engaged in the conspiracy did,

or caused to be done, an act or acts in

furtherance of the object of the con-\

spiracy, whereby Wilhelm was injured in

his person or property.

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7. On or about April 15, 1978, Vis-

conti was hired as President of the Com-

pany.

8. In the last half of April of 1978,

the Company and Visconti demoted Wilhelm

from his position as manager of a branch

office of the Company to a position as

salesman. No reason was given for the

demotion.

9. On or about May 30, 1978, the Com-

pany and Visconti discharged Wilhelm from

his employment with the Company. At the

time of the discharge, Visconti stated

that Wilhelm was having trouble getting

around to do his job. Wilhelm replied

that the reason for this was that he had

multiple sclerosis.

10. On or about June 9, 1978, Wilhelm

filed a charge of employment discrimina-

tion, based on handicap, against the Com-

maar with the Colorado Civil Rights

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Commission. Subsequently, the Company

and Visconti requested several persons

to write letters stating that Wilhelm

failed to perform his job satisfactorily

while he was employed with the Company.

On several occasions in 1981, the Company

and Visconti stated that unsatisfactory

job performance was the reason for dis-

charging Wilhelm from his employment with

the Company. These statements are false,

and were made for the sole purpose of

covering up the true reason for discharg-

ing Wilhelm.

ll. The Company and Visconti neglected

or refused to use their power to prevent

the acts in furtherance of the object of

the conspiracy which they knew or reason-

ably should have known were about to be

committed.

12. As the direct and proximate result

of the acts in furtherance of the object

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of the conspiracy, Wilhelm suffered

economic loss, including loss of salary

and benefits, loss of reputation and good

name, and loss of economic opportunity.

Wilhelm also suffered embarrassment and

humiliation, loss of marital harmony,

mental distress, and mental and physical

deterioration.

SECOND CLAIM

13. This is a claim for relief under

C.R.S. 1973, §24-34-301 et seg. Juris-

diction of the Court over the subject

matter is invoked pursuant to the Court's

pendent jurisdiction.

14. On or about May 30, 1978, the

Company and Visconti discharged Wilhelm

from his employment with the Company on

account of his handicap of multiple

sclerosis.

THIRD CLAIM

15. This is a claim for relief under

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42 U.S.C. §1983 and the Fourteenth Amend-

ment to the Constitution of the United

States. Jurisdiction of the Court over

the subject matter is invoked pursuant to

28 U.S.C. §§1331 and 1343.

16. On or about June 9, 1978, Wilhelm

filed a charge of employment discrimina-

tion, based on handicap, against the Com-

pany with the Colorado Civil Rights Com-

mission.

17. On or about July 2, 1979, the Colo-

rado Civil Rights Commission determined

that there is probable cause to believe

that Wilhelm's charge of employment dis-

crimination is true.

18. On or about June ll, 1980, the

Defendant Dorothy J. Porter ("Porter")

acted under color of Colorado law and

beyond the scope of her authority as

Director of the Colorado Civil Rights

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Division to close the charge of employ-

ment discrimination which Wilhelm had

filed against the Company with the Colo-

rado Civil Rights Commission, thus

depriving Wilhelm of his liberty and

property under C.R.S. 1973, §24-34-301

et seg. Specifically, Wilhelm was

deprived of his right to expect to be

able to continue his employment with

the Company without being discriminated

against on account of his handicap of

multiple sclerosis. Wilhelm was also

deprived of his right to expect to

have an opportunity for redress of his

charge of employment discrimination

against the Company with the Colorado

Civil Rights Commission. Since Porter

acted to close the charge of employment

discrimination without granting Wilhelm

a hearing on the merits of the charge,

Porter violated the due process clause

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of the Fourteenth Amendment to the

Constitution of the United States.

19. As the direct and proximate

result of the due process violation,

Wilhelm suffered economic loss, includ-

ing loss of salary and benefits, loss

of reputation and good name, and loss

of economic opportunity. Wilhelm also

suffered embarrassment and humiliation,

loss of marital harmony, mental dis-

tress, and mental and physical deter-

ioration.

WHEREFORE, Wilhelm requests the

following relief:

a. the recovery of all compen-

satory damages, including

back pay;

b. the recovery of punitive

damages;

c. the recovery of interest,

costs, and reasonable

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attorney's fees; anc

ad. such other and further relief

as the Court and jury deem

just and proper.

Respectfully submitted,

/s/ David L. Smith

David L. Smith #006934

Attorney for Plaintiff

2036 Dexter Street

Denver, Colorado 80207

(303) 620-7012

Plaintiff's address:

7880 West 47th Avenue

Wheat Ridge, Colorado 80033

CERTIFICATE OF MAILING

The undersigned certifies that on this

28th day of January, 1982, true and

correct copies of the foregoing Second

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Amended Complaint were mailed, postage

prepaid, to:

Perry L. Goorman, Esq.

410 17th Street,

Suite 2390

Denver, Colorado

80202

William Levis,

Assistant

Attorney General

Human Resources

Section

1525 Sherman St.

3rd Floor

Denver, Colorado

80203

/s/ David L. Smith

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