# Petition — Wilhelm v. Continental Title Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1103

## Text

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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

A-64

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

A-65

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

A-66

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1180%3A1. Public record. Not legal advice.