Petition for Writ of Certiorari — Donner v. Appalachian Insurance

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

a I s.., , ans

ar } 8 | . ourt, U.S.

t fe j 9 ‘ej TLED

ST sak 24 1998 |

NO. “Aaa int CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

MIRIAM DONNER,

Petitioner,

vs.

APPALACHIAN INSURANCE COMPANY, a Rhode

Island corporation, CITY OF MIAMI, VERNON

HETHERINGTON, FOWLER, WHITE, BURNETT, HUR-

LEY, BANICK & KNIGHT, P.A. a/K/a FOWLER,

WHITE, BURNETT, HURLEY, BANICK & STRICK-

ROOT, P. A., a Florida professional

association, PHILLIP W. KNIGHT, and

MICHAEL J. MURPHY,

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO

DISTRICT COURT OF APPEAL OF FLORIDA,

THIRD DISTRICT

PETITION FOR WRIT OF CERTIORARI

Miriam Donner,

in proper person

P. O. BOx 1232

Hallandale, Fla. 33008

QUESTIONS PRESENTED FOR REVIEW

1. May a state court dismiss with

prejudice federal [42 U.S.C. §1983 and 18

U.S.C. §1964(c)] claims solely in reliance

upon its own state-law-based rule of inm-

munity for litigation-related misconduct?

2. Are a municipality, its officer,

insurer, and counsel "absolutely immunity"

under 42 U.S.C. § 1983 for conspiring un-

der color of state law to conceal, and

withhold production of, information and

public records, requested in state-court-

litigation pretrial discovery, by fraudu-

lently responding that the information and

records do not exist and in furtherance of

that conspiracy also denying the right of

access to those public records in defiance

of an extrajudicial demand (under a state

“public records" law) for access thereto?

3. Does any such immunity exist under

18 U.S.C. § 1964(c) (RICO)?

4. Did the complaint state § 1983 and

RICO claims by alleging that the said con-

spiracy was under color of state law, that

the false discovery responses were served

by mail over a period of several years in

a state-court damage suit for false

arrest, federal civil rights violations,

etc., that the fraud was concealed for

over ten years, and that the conspiracy

prejudicially interfered in that suit with

plaintiffs' (First and Fourteenth Amend-

ment) right of access to the court, delay-

ed for ten years the progress of that

suit, caused loss of relevant evidence,

faded memories of witnesses, added expense

and mental anguish and also prejudiced her

claims against other defendants?

5. Did the lower court err in dis-

missing the complaint with prejudice

without even one opportunity to amend?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .... j

TABLE OF AUTHORITIES ........ Vii

ee I Ss ke ek 1

CONCISE JURISDICTIONAL STATEMENT .. 1

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED ........ 2

STATEMENT OF THE CASE ........, 3

A. SUMMARY OF COMPLAINT ....... 4

B. DISMISSAL OF THE COMPLAINT WITH

i Se i,

Cc. APPEAL AND AFFIRMANCE ...... 14

SUMMARY OF ARGUMENT ..........419

ee Se 5 eg kk ke we we

I. THIS COURT IS VESTED WITH CERTIO-

RARI JURISDICTION TO REVIEW THE

FLORIDA STATE COURT JUDGMENT ... 22

A. PRESERVATION OF ISSUES

ae fo -

As PRESERVATION OF ISSUES

AT TRIAL LEVEL ....... 24

(a) 42 U.S.C. SEC. 1983 ACTION . 26

(Db) RICO CAUSE OF ACTION .... 31

iii

(Cc)

LEAVE TO AMEND ....--.-.- 33

PRESERVATION OF ISSUES

ON APPEAL ... +s «6 © © © « e 39

STATE COURTS MUST APPLY

FEDERAL, LAW TO ISSUES OF

IMMUNITY IN REGARD TO

FEDERAL ACTIONS .....-.. 37

FEDERAL LAW DOES NOT

IMMUNIZE DEFENDANTS’

ALLEGED MISCONDUCT... . . 38

NO SUCH IMMUNITY ARISES

UNDER 42 U.S.C. SEC. 1983 .. 38

DONNER‘’S SEC. 1983 CLAIMS ARE

NOT FOR DEFAMATION; NOR DOES

CONCEALMENT OF INFORMATION

EVEN CONSTITUTE A "STATEMENT" 41

DEFENDANTS’ REFUSAL OF

DONNER’S PUBLIC RECORDS

DEMAND IN FURTHERANCE OF

THEIR CONSPIRACY TO CON-

CEAL RECORDS WAS NOT

"IN A JUDICIAL PROCEEDING". 42

INTERROGATORIES AND REQUESTS

FOR PRODUCTION WERE UNKNOWN

TO THE COMMON LAW ...... 44

COMPLAINT DOES NOT ALLEGED

THAT CONSPIRACY WAS ENTERED

INTO IN A JUDICIAL PROCEEDING 47

NO SUCH IMMUNITY ARISES UNDER

FEDERAL CIVIL RICO ..... 50

If. DISCRETION SHOULD BE EXERCISED

IN FAVOR OF ACCEPTING JURISDICTION 51

CUNCLUSION . 1+ s+ s+ ws ew tb we www es 8

DEN UULE “se 6 «Gs es @ ow eu Al-A17

MAY 7, 1991 OPINION OF DISTRICT

COURT OF APPEAL, THIRD DISTRICT .... Al

FINAL ORDER OF DISMISSAL ENTERED

MARCH 27, 1990 BY CIRCUIT COURT OF

11TH JUDICIAL CIRCUIT OF FLORIDA .. . AS

APRIL 26, 1990 ORDER ON PLAINTIFF’S

MOTION FOR REHEARING AND ADDENDUM

TO MOTION FOR REHEARING ENTERED BY

CIRCUIT COURT OF 11 JUDICIAL

CIRCUIT OF FLORIDA .. 4 1 « s+ «ee Ae

OCTOBER 29, 1991 ORDER OF FLORIDA

SUPREME COURT DENYING PETITION FOR

WRIT OF CERTIORARI .. ++ <s«s-s.«-s AiO

JULY 3, 1991 ORDER OF DISTRICT COURT

OF APPEAL, THIRD DISTRICT, DENYING

MOTIONS FOR REHEARING, CERTIFICATION

OR CLARIFICATION AND REHEARING

ae DMG 2: 6 swe eee ee ee a eee

U.S. Const., amend. I ‘+ « + & «se Wee

U.S. Const., amend XIV, sec. 1 ... Al2

$2 U.S.C. O66. 1963. . 4-4 6 & «x a Al2-13

18 U.S.C. sec. 1961 (1970) sc «a ee Bag

18 U.S.C. sec. 1962 (1970) ..... Ala

18 U.S.C.

sec.

1964(c) .

1341 (1970)

TA OF AUTHORITIES

Adickes v. S.H. Kress & Co.,

oom Wels £446 £3970) 2 2 se % 8

Beeck v. Kapalis,

302 N.W.2d 90 (Iowa 1981) .

Briscoe v. LaHue

460 U.S. 325 (1983) . . 18,21,38,39,43,50

Burns v. Reed,

111 S.Ct. 1934 (1991) . . . 40,42,44,45,49

California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508 (1972) 28

City of Lakeland v. Select

Tenures, Inc., 129 Fla. 338,

176 So. 274 (1937) . eae

Davis v. Village Park II

Realty Co., 578 F.2d 461

¢. go ae, | See ae

Donner v. Appalachian

Insurance Co., 580 So.2d 797

(Fla. Dist. Ct. App. 1990) . 1...

Donner v. Edelstein, 415 So.2d 830

(Fla. Dist. Ct. App. 1982) ..

Donner v. Hetherington,

399 So. 2d 1011

(Fla. Dist. Ct. App. 1981)

Dykes v. Hosemann, 743 F.2d 1488

(2a: Cals 2Ge) sk a ce we ee ee

vil

Edelstein v. Donner, 450 So.2d 562

(Fla. Dist. Ct. App. 1984),

approved, 471 So.2d 26 (Fla. 1985) .. 43

Flores v. Perez, 617 F.2d 1386

(9th Cir. 1980), cert. denied,

449 U.8. O75 (i96G) «© « « @ © ow se wo « 3

The Florida Star v. B.J.F.,

530 So. 2d 286 (Fla. 1988) ee = a ew A

Gentry v. Township of Gloucester,

736 F.Supp. 1322 (D.¢C.N.d. 1990) ... 31

Gomez v. Toledo, 446 U.S. 635 (1980) s 26

Harrison v. Springdale Water

& Sewe fe) ion,

780 F.2d 1422 (8th Cars 290Gb « « « %& « 2B

Highlands County School Board v.

K.D. Hedin Construction, Inc.,

382 So.2d 90 (Fla. Dist. Ct. App. 1980) 33

H.J., Inc. v. Northwestern Bell

Telephone Co., 109 S.Ct. 2893 (1989) . 32

Howlett v. Rose, 537 So. 2d 706

(Fla. 2d Dist. Ct. App. 1989),

rev. denied, 545 So. 2d 1367

(Fla. 1989), rev’d sub non.,

Howlett by and through Howlett

¥,. Rose, 110 $.Ct. 2430 (1990) 18,19,37,38

Imbler v. Pachtman,

S44 Uses 409 (E976) «0 s&s & 2s ee we 6) 640,42

Johnson v. Brown,

Le ees Fe Ree ee Cee oe hee ae Ce ke) ee oe

vill

Logan v. Zimmerman,

Seo Us. S28 (3968) « « & 2 6 wc 29,33

Lytell v. McGahey Chrysler-

Plymouth, Inc., 180 So.2d 354

(Fie. O1et. CO. App. 1965) . . 1. ss

Martinez v. State of California,

444 U.S. 277 (1980) ..«.«+s.-e«-e-«-e 18,38

Memphis Community School District

Vv. ac a, 477 U.S. 299 (1986) s = + aE

Monell v. Department of Social

services of City of New York,

26 U.8. 630 (2976) « « s+ sw ee te we ee we

Morgan v. Graham, 228 F.2d 625

FS0ee Gabe See) 5 OR eon ot el oe a

Morley v. Cohen, 888 F.2d 1006

[aum Gar. SPOR) & 8 0 aka & awe ES 32

Perl v. Omni Int’l of Miami, Ltd.,

439 So.2d 316

(Fie. Dist. Ct. Amp. 1963) . ....s « 22

Pizzi v. Central Bank & Trust Co.,

250 So.2d 895 (Fla. 1971) .... 22,060,469

Ponzoli & Wassenberg, P. A.

v.Zuckerman, 545 S$o.2d 309

(Fla. Dist. Ct. App. 1989),

rev. denied, 554 So.2d 1170

Cee I ee eg ee a ee eee 22

Posey v. Magill, 530 So.2d 985

(Fees Dames To. Be. 1988) 2 3 Se Se

Ryland v. Shapiro, 708 F. 2d 967

(Sth Cae. 1963) . « 2 «© © «6 « © « 27,28,30

Smith v. City of Fontana,

818 F.2d 1411 (9th Cir. 1987),

cert. denied, 108 S.Ct. 311 (1987) .. 29

Street v. New York,

394 U.S. 576 (1969) ..... 19,23,34,37

Tafflin v. Levitt, 110 S.Ct. 792 (1990) 32

Tucker v. Bray, 458 So.2d 841 (Fla.

DaSe.Ce. Bs. 296464) 2 « ew ws tw sw ew st OG

Tower v. Glover,

467 U.S. 914 (1984) ..... 39,42,45,48

U.S. v. Leyden, 842 F.2d 1026

Fie Gees. ee 44 Su) «> BOAR ee ee eS cy PEP!

U.S. v. Peters, 732 F.2d 1004

[2G Gab. Beee) « «a es 6 we le) ee ee

U.S. v. Vaughan, 797 F.2d 1485

(9th Car. 1986) . «+6 «© © © 8s 6 «© © 38,52

Vance v. Indian Hammock Hunt &

Riding Club, 403 So.2d 1367 (1981) .. 24

Wells Fargo Armored Services Corp. v.

Sunshine Security & Detective Agency,

Inc., 575 So. 2a 179 (Fla. 1991) — a a

Wolff v. McDonnell, 418 U.S. 539 (1974) 29

Wright v. Yurko, 446 So.2d 1162

(Fla. Dist. Ct. App. 1984) ...... 22

Zinermon v. Burch,

110 S.Ct. 975 (1990) i ¢ 6 * & es « 3ac47

U. S. Const., amend. I ..... 2,30,A12

U. S. Const., amend. XIV, sec. 2 2,30,A12

18 U.

"”

“CO. SOC. 1341 . 2. 2 « 6 « « 2,31,AL6

46 U.S.C. Sec. 1963 . . .« « « 6 « « « 2,80

18 U.S.C. Sec. 1961(1) +’ oe + « © 6 See

18 U.S.

‘

fox

Me UsmeGs. ONG. 2966 «a «& s acs a> ee

43 U.S.C. Sec. 1964(c) . . 2,13,21,50,A16

28 U.S.C. Sec. 1257(a) 2

42 U.S.C. Sec. 1983 passim

sec. 46.021, Fla. Stat. 29

sec. 90.201(1), Fla. Stat. ee a ee oe ae ee

sec. 119.01, et seq., Fla. Stat. » « « 43

Filia. R. Civ. P. 1.530(a) oe ee a ee

raQ. BR. Civ. PP. 1.530(b) » » «© «© © « « £8

Fla. R. Jud. Admin. 2.060(1) a & © ste

McCormick, Evidence Sec. 335

(2nd ed 1972)

OPINION BELOW

The opinion of the District Court of

Appeal of Florida, Third District, is

reported as Donner y. Appalachian Insur-

ance Co., 580 So.2d 797 (1990) and is

reprinted at pages 1-4 of the appendix,

post. That is the only reported opinion in

this case. Various other, unreported

orders of the trial court, the Third Dis-

trict, and the Florida Supreme Court are

reprinted at pages 5-11 of the appendix.’

CONC ISDICTIONAL STATEMENT

The District Court of Appeal of Flor-

ida entered judgment May 7, 1991. Rehear-

ing was denied July 3, 1991. That judgment

includes legal reasoning with citation of

authorities "which [The Florida Star v. B.

The names of all parties appear in

the caption of the case. There are no par-

ent or subsidiary companies.

J.F., 530 So. 2d 286 (Fla. 1988) has held}

is subject to discretionary review by the

[Florida] state court of last resort" as

contemplated by Sup. cCt. R. 13.1. The

"State court of last resort," the Florida

Supreme Court, denied a petition for dis-

cretionary review of that judgment on Oct-

ober 29, 1991. This petition was timely

filed "within 90 days after the order

denying discretionary review." Jurisdic-

tion of this Court to review that judgment

is invoked under 28 U.S.C. Sec. 1257 (a).

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const., amend. I, U.S. Const.,

amend XIV, sec. 1, 42 U.S.C. sec. 1983, 18

U.S.C. sec. 1961 (1970) (amended 1984,

1986, 1988, and 1989), ib U.S.C. sec. 1962

(1970) (amended 1988), 18 U.S.C. sec.

1964(c), and 18 U.S.C. sec. 1341 (1970)

(amended 1988), involved in this case, are

quoted, in pertinent part, at pages 12-17

of the appendix.

STAT OF THE CASE

Petitioner Donner seeks review of a

Florida state appellate court affirmance

of a judgment of dismissal with prejudice,

granting defendants’ motions to dismiss

the complaint in Case No. 89-37625. Don-

ner, aS plaintiff, instituted that case in

1989 in the Eleventh Judicial Circuit of

Florida. Donner’s complaint named as de-

fendants Appalachian Insurance Company

("Appalachian"), City of Miami, Florida

("the City"), City of Miami Police Officer

Vernon Hetherington ("Hetherington"),

Fowler, White, Burnett, Hurley, Banick &

Knight, P. A. ("Fowler"), and attorneys

Phillip W. Knight ("Knight") and Michael

J. Murphy ("Murphy").

A. SUMMARY OF COMPLAINT

The allegations of Donner’s complaint

may be summarized as follows.

In previously-filed Circuit Case No.

76-8301, Donner had sued Hetherington, the

City, and their insurer, Appalachian. In

that earlier 1976 suit, Metropolitan Dade

County, Florida ("Dade County") and cer-

tain county correctional officers (not

parties to the case at bar) were also

joined as defendants. In that earlier suit

for damages, Donner claimed that, while

exercising her "First Amendment" right to

picket and gather signatures on a peti-

tion, she was falsely arrested on a charge

of breach of peace by Hetherington, acting

within the course and scope of his employ-

ment as a City of Miami Police Officer

"under color of state law," and was there-

by deprived of her "civil rights"; as a

result of that arrest, she was imprisoned

in the Dade County Women’s Annex as a

pretrial detainee for five days; the per-

sonnel of that Annex, acting within the

course and scope of their employment as

employees of Dade County and "under color

of state law," assaulted her, stripped her

naked, and left her in a cold solitary

cell (all in full view of male prison per-

sonnel) without clothing, blankets, tow-

els, linen, medical attention, exercise

facilities, running water, operable toi-

let, or elements of personal hygiene for

four days; the breach of peace charge was

ultimately dismissed.

Insurer Appalachian retained the Fow-

ler law firm to represent defendants in

Case No. 76-8301 and supervised their ren-

dition of legal services. Attorneys Knight

and Murphy, in the employ of that firn,

appeared in that case as defense counsel.

The City and Hetherington denied that

the arrest was without "probable cause."

In Case No. 76-8301, “under color of

state law," the City, Hetherington, Appa-

lachian, the Fowler law firm, and Knight,

in conspiracy with one another, engaged in

the following pattern of fraudulent misre-

presentation and concealment.

The City’s April 12, 1976 answers to

interrogatories, served by mail upon Don-

ner by defense counsel Knight, falsely

represented that witnesses to the arrest

were “unknown."* In truth, names and ad-

* ¥hose same answers to interrogator-

ies falsely stated that the City’s insurer

is "unknown" -- even though it was Appala-

chian that had retained the Fowler law

firm. That same firm served Hetherington’s

answer to an insurance interrogatory, dis-

closing only Appalachian’s policy. Then,

in response to Donner’s request for pro-

duction of all policies, the City misre-

presented the insurance coverage as limit-

ed just to the Appalachian policy, produc-

dresses of witnesses to the arrest incid-

ent were known to defendants since 1975

but those witnesses were no longer avail-

able to testify when finally years later

Donner learned of them.

Hetherington’s answers to interroga-

tories, served in 1977 by mail upon Donner

by defense counsel Knight, falsely repre-

sented that the only statement given by

Hetherington concerning the incident was a

July 1, 1975 statement. Knight wrote a

letter to the trial judge, falsely repre-

senting that the City had only that July

1, 1975 statement and a June 23, 1975

statement of Officer Parker. In 1978,

Knight mailed Donner the City’s responses

to her requests for production, falsely

representing that all records requested

ed just the Appalachian policy, and con-

cealed three other policies.

therein and ordered to be produced had

been produced, and he mailed her a like

false response to her motion for discovery

Sanctions. He even served upon her by mail

Hetherington’s false disclaimer of the

authenticity of the two statements that

the City had produced.

In addition to the officers’ afore-

mentioned statements that were produced,

other requested-to-be-produced statements

were known to, and in the custody of, the

City, its counsel, and Appalachian but

were not produced and in fact were con-

cealed. Donner’s complaint describes those

concealed statements and explains their

evidentiary significance favorable to her

case and their relevance to the issues of

both liability and damages.

At the 1980 trial in that case, the

court directed a verdict in favor of the

City, Hetherington and Appalachian and en-

tered judgment on that directed verdict.

One year later, that verdict and judgment

were reversed on appeal. Donner v. Hether-

ington, 399 So.2d 1011 (Fla. Dist. Ct.

App. 1981). That action remains (now six-

teen years later) still pending in the

trial court. If not for that misrepresent-

ation and concealment, Donner would have

had access to those withheld records and

could have presented additional evidence

at the 1980 trial that would have contra-

dicted and impeached Hetherington’s test-

imony and would have avoided entry of that

directed verdict and the expense and men-

tal anguish attendant upon the aforemen-

tioned appeal. At that 1980 trial, after

that verdict was directed, the jury re-

turned a $15,000 verdict on Donner’s

claims against Dade County and its correc-

tional officers. The amount of that ver-

dict was impaired as a result of the una-

vailability to Donner of those concealed

records.

All those representations were known

by defendants to be false when made or

were made without knowledge of whether

they were true, were made with the inten-

tion that Donner rely upon their truth,

and were material to the preparation and

presentation of her case for trial, not

only against Hetherington, the City, and

Appalachian, but also against Dade County

and its correctional officers, and Donner

did So rely to her detriment.

On October 28, 1981, Donner made a

"public records demand" upon the City

Attorney, upon the Fowler law firm, and

upon Murphy to produce their respective

case files relating to the claims asserted

in Case No. 76-8301. Included in those

files were the concealed statements, re-

cords referring thereto, and records con-

firming defendants’ knowledge of the con-

cealed items of information.

In response to that request, in order

to conceal that scheme, and in order to

deprive Donner of her claims asserted in

Case No. 76-8301, the City, Fowler and

Murphy, in conspiracy with one another and

with the other defendants and "under color

of state law," responded that the demanded

public records would be produced only

"when donkeys fly." Donner was forced to

initiate Case No. 81-369 EX, a mandamus

proceeding against Murphy, Fowler, and the

City, to gain access to those records.

That proceeding resulted in the issuance

of a writ of mandamus requiring those re-

cords custodians to produce the demanded

public records and on August 19, 1985

public records were for the first time

produced to Donner for inspection.

During the four-year duration of that

mandamus proceeding, Case No. 76-8301 was

stayed and further delayed. Also as a re-

sult of that conspiracy, Donner suffered

mental anguish, evidence useful in prose-

cuting her claims (including claims for

violation of her "civil rights") has been

lost, and memories of witnesses useful in

prosecuting her claims (including claims

for violations of her "civil rights")

prejudicially faded.

B. D e) COMPLAINT WITH

PREJUDICE

In Case No. 89-37625, two motions to

dismiss the complaint were filed, one in

behalf of Hetherington and the City and

the other in behalf of Appalachian, Fow-

ler, Knight and Murphy. Appalachian’s

motion asserted as a ground "absolute pri-

vilege" for "statements or pleadings made

in the course of judicial proceedings" but

cited no supporting authority. The motion

filed in behalf of the City and Hethering-

ton asserted no such "privilege." The tri-

al court granted both motions to dismiss

and dismissed the complaint with preju-

dice, but without specifying the ground

for dismissal. (appendix 5-7) Donner’s

timely-filed motion for rehearing and

timely addendum thereto pointed out that

the complaint sets out causes of action

under Florida state law, under "18 U.S.C.

Sec. 1964(c)," and under "42 U.S.C. Sec.

1983." Her motion alternatively requested

at least one opportunity to amend the com-

plaint. That motion for rehearing and add-

endum thereto were denied.(appendix 8-9)

C. APPEAL AND AFFIRMANCE

Donner appealed that dismissal to the

District Court of Appeal of Florida, Third

District. Donner briefed as issues pre-

sented for review her contentions that

"all elements of a federal civil rights

action are alleged" (Donner’s Initial and

Reply Briefs), that "all elements of a

federal civil RICO action are alleged"

(Donner’s Initial and Reply Briefs), and

that no privilege for statements made in

the course of judicial proceedings applies

under Sec. 1983 or RICO to defendants’

alleged misconduct (Donner’s Initial and

Reply Briefs).* In regard to the above-

quoted issues, Donner argued that privi-

lege under Sec. 1983 "is an issue of fed-

* Donner also presented as an issue on

appeal, and briefed argument in regard to,

the trial court’s erroneous denial of her

request for leave to amend the complaint.

eral, not Florida, law," and that, under

federal law, neither defendants’ conceal-

ment of witnesses’ names (requested in

interrogatories) and of records (requested

to be produced in pretrial discovery and

in public records demands) nor _ their

fraudulent misrepresentations in further-

ance thereof, nor their conspiracy in that

regard were immunized from Sec. 1983 or

RICO liability by any "litigation" or jud-

icial-proceeding "privilege." (Donner’s

Initial and Reply Briefs) Those appellate

arguments were supported by citations to

federal precedent. Additionally, Donner’s

Initial and Reply Briefs argued, and

cited, in the context of federal RICO,

federal cases affirming mail fraud con-

victions for false statements and false

answers to interrogatories in judicial

proceedings.

The Third District affirmed with an

opinion. (appendix 1-4) In regard to Case

No. 76-8301, the Third District stated:

"Following a series of false starts,

frustrated discovery forays, and

appeals, the 1976 action languishes

below awaiting retrial."

(appendix 1-2) The opinion next adverts to

Donner’s public records mandamus proceed-

ing, "seeking access to the litigation

files from" Case No. 76-8301, to her suc-

cessful prosecution of that proceeding,

and to her allegation that only when those

files were produced under the writ of

mandamus did she uncover defendants’

"alleged fraudulent misrepresentations

made during discovery" in Case No. 76-

8301. According to that opinion, Donner

then filed Case No. 89-37625 and

",.. [pled] multiple causes of action

arising from alleged fraudulent mis-

representations ... The trial court

dismissed that complaint with preju-

dice for failure to state a claim."

(appendix 2-3) No reference is made in

that opinion to the federal nature of

claims pled in Donner’s complaint. Nor are

any federal cases cited. The Third Dis-

trict merely states:

We agree with the trial court that

the complaint Ms. Donner filed in

this action failed to state a cogniz-

able claim. See Ponzoli & Wassenberg,

P. A. v. Zuckerman, 545 So.2d 309

(Fla. 3d DCA 1989), rev. denied, 554

So. 2d 1170 (Fla. 1989) (statements

made in the course of judicial pro-

ceedings enjoy ab-clute privilege);

Wright v. Yurko, *46 So. 2d 1162

(Fla. 5th DCA 1984); Perl v. Omni

Int’l of Miami, Ltd., 439 So. 2d 316

(Fla. 3d DCA 1983) (Same).

(appendix 3) Footnote 3 to the opinion

below relegates Donner rather to the trial

court to apply in the pending 1976 action

for "sanctions" in regard to the alleged

discovery violations.‘

Donner timely moved for rehearing,

* Footnote 3 also notes that the opin-

ion should not be read as barring amend-

ment of the complaint in Case No. 76-8301.

pointing out that the Third District’s re-

liance upon Florida state court case pre-

cedents concerning state law on the issue

of immunity overlooked the fact that her

complaint stated federal Sec. 1983 and

RICO causes of action and that, under How-

lett by and through Howlett v. Rose, 110

S.Ct. 2430 (1990), Martinez v. State of

California, 444 U.S. 277 (1980), Briscoe

v. LaHue, 460 U.S. 325 (1983), and other

cited federal cases, federal, not state,

law is controlling. That motion alterna-

tively requested clarification of the

opinion to refer to the federal nature of

those causes of action to aid this Court

in adjudicating a petition for writ of

certiorari. That motion was denied. Don-

ner’s petition to the Florida Supreme

Court for review of the appellate affirm-

ance was also denied. (appendix 10 and 11)

Ss OF

The Third District’s erroneous re-

liance upon Florida state law as immun-

izing defendants against liability under

Sec. 1983 and RICO is reviewable by this

Court even though the Third District omit-

ted any mention of the federal nature of

those causes of action. The test to be

applied under Street v. New York, 394 U.S.

576, 581-584 (1969) is whether the federal

nature of those causes of action was at

the trial level preserved for review and

was at the appellate level presented for

review. That test is fully satisfied by

the record below.

The Third District’s reliance upon

state law as immunizing defendants from

liability in regard to those federal

claims directly conflicts with this

Court’s recent decision in Howlett, 110

S.Ct. 2430, requiring the application of

federal law.

In regard to the Sec. 1983 clain,

this Court has recognized only limited

immunity in the context of "defamation"

for "statements made in the course of jud-

icial proceedings." That immunity is here

inapplicable for the following reasons:

Donner’s Sec. 1983 claim is not for "de-

famation"; defendants’ concealment of re-

cords and information cannot be character-

ized as "statements"; neither Donner’s

extrajudicial demand for access to public

records nor defendants’ extrajudicial den-

ial thereof was "in a judicial proceed-

ing"; pretrial discovery was not known to

the common law when Sec. 1983 was enacted;

and the underlying conspiracy was not

alleged to have been formulated ina judi-

Cial proceeding.

That in-any-event-inapposite immunity

is not applicable to Donner’s RICO claim

for the additional reason that this Court

noted in Briscoe v. LaHue, 460 U.S. 325,

339 n.22 (1983) -- that statements made in

the course of judicial proceedings are not

immune from criminal liability. Under 18

U.S.C. Sec. 1964(c), conduct that gives

rise to criminal liability also gives rise

to civil liability.

This Court should exercise its dis-

cretion by accepting certiorari jurisdic-

tion. The Third District’s decision con-

flicts with decisions of this Court and of

the Courts of Appeal and deprives Donner

of any federal remedy for the damage caus-

ed by defendants’ misconduct under color

of state law that has so long delayed and

frustrated her prosecution of Case No. 76-

8301, a sixteen-year-old action.

ARGUMENT

I. THIS COU IS VESTED WI CERTI-

ORARI JURISDICTION TO REVIEW THE

FLORIDA A CO JUDGM

This Court is vested with jurisdic-

tion to review the Florida state court

judgment because that judgment disposes of

an important issue of immunity, regarding

Donner’s federally-based causes of action,

in a way that conflicts with applicable

decisions of this Court and of United

States courts of appeal.

That conflict is no less real simply

because the Third District’s opinion chose

not to mention the federal nature of the

issues disposed of by its judgment. The

Third District grounds its decision, that

the complaint "failed to state a cogniz-

able claim," solely upon Ponzoli & Wassen-

berg, P. A. v. Zuckerman, 545 So. 2d 309,

Wright v. Yurko, 446 So.2d 1162, and Perl

‘. ‘lo Lam) td., 439 So. 2d

316, all cited as applying a privilege

immunizing statements made in the course

of judicial proceedings. Those cases con-

cerned only non-federal claims. The Third

District omits mention of federal law

Simply by omitting reference to the fed-

eral nature of Donner’s pleaded claims.

A. PRESERVATION OF ISSUES FOR REVIEW

That omission does not foreclose this

Court’s exercise of certiorari jurisdic-

tion. In Street v. New York, 394 U.S. 576,

581-584 (1969), even though no mention of

the federal issue appeared in the state

court judgment, jurisdiction was held to

exist where the record below demonstrated

that the federal issue had been preserved

at the state court trial level for appel-

late review and had been raised on appeal

to the New York state appellate court. The

record at bar meets those criteria.

1. PRESERVATION OF ISSUES AT TRIAL

LEVEL

First of all, at the trial level, the

federal nature of Donner’s Sec. 1983 and

RICO claims, not only was explicitly arti-

culated in her timely motion for rehearing

and addendum thereto,® but also appeared

on the face of the complaint. In pleading

a statutory cause of action in a Florida

state court, it is not necessary to in-

Clude any reference to the statute, so

long as the complaint’s factual allega-

tions plead all the elements of the cause

of action. City of Lakeland v. Select Ten-

ures. inc., i239 Fia. 338, 176 So. 274, 277

(1937); Vance v. Indian Hammock Hunt &

Riding Club, 403 So.2d 1367, 1369 (1981).

>" Fla. R. Civ. P. 1.530(a) and (b)

authorizes service of a motion for rehear-

ing of a judgment within ten days after

entry thereof.

City of Lakeland, 176 So. at 277 explained

that Florida courts are required to take

"public cognizance of all public stat-

utes." That rule has now been codified in

Sec. 90.201(1), Fla. Stat., mandating that

the trial court judicially notice federal

(and state) law. The commentary accompany-

ing that statute further states that Flor-

ida law is in accord with the statement in

McCormick, Evidence Sec. 335 (2nd ed 1972)

that "state courts will notice the federal

law that is controlling." Furthermore, in

Pizzi v. Central Bank & Trust Co., 250

So.2d 895 (Fla. 1971), the Florida Supreme

Court held that the trial court is con-

fined "strictly to the allegations within

the four corners of the complaint" in

adjudicating a motion to dismiss. Florida

additionally subscribes to the familiar

rule that "[i]f a complaint states a cause

of action upon any ground, a motion to

dismiss the complaint for failure to state

a cause of action should be denied."

t v. McGahey C Ssler-Plymouth, Inc.,

180 So.2d 354, 355 (Fla. Dist. Ct. App.

1965). It will be seen that the factual

allegations within the four corners of

Donner’s complaint do plead elements of

federal Sec. 1983 and RICO claims.°®

(a) 42 U.S.C. SEC. 1983 ACTION

First to be considered is Donner’s

Sec. 1983 claim. Gomez v. Toledo, 446 U.S.

635, 640 (1980) holds that such a claim is

alleged simply by stating that defendant

deprived plaintiff of a federal right un-

* It will also be seen (in section C

of this Argument, post) that, within the

four corners of the complaint, appear

allegations of misconduct that do not con-

stitute "statements made in the course of

judicial proceedings" immune from Sec.

1983 and RICO liability.

der color of state law. Since the defend-

ant City is a local governmental unit,

Since its insurer and defense counsel

allegedly acted in behalf of, and in "con-

Sspiracy" with, the City, and since Hether-

ington allegedly also "conspired" with

them, all were properly alleged to have

acted "under color of state law."’ Adickes

Vv. S.H, Kress & Co., 398 U.S. 144, 150-152

(1970); la v. Shapi , 708 F.2d 967,

’ Cities are inciuded among the "per-

sons" subject to liability under Sec.

1983. Monell v. Department of Social Ser-

vices of City of New York, 436 U.S. 658,

690 (1978). While Monell limits the City’s

own liability just to acts of official

municipal policy, the alleged misconduct

of the City acting through its attorneys

in Case No. 76-8301 meets that criterion;

Fla. R. Jud. Admin. 2.060(1) provides:

"In all matters concerning ... de-

fense of any proceeding in the court,

the attorney of record shall be the

agent of the client and any ... act

by the attorney in the proceeding

shall be accepted as the act of

the client."

974 (5th Cir. 1983); Harrison v. Spring-

Gale Water & Sewer Commission, 780 F.2d

1422, 1426 n.4, 1430, n.14 (8th Cir.

1986). Donner’s complaint also sufficient-

ly alleged that defendants’ misconduct

deprived her of rights secured by the

Constitution and under federal law -- her

right of meaningful access to court to

prosecute Case No. 76-8301. In Ryland v,.

Shapiro, 708 F.2d 967 (5th Cir. 1983), the

Fifth Circuit held that Ryland’s similar

complaint, alleging that defendants’ mis-

conduct under color of state law delayed

for eleven months Ryland’s right of access

to state court in regard to Ryland’s state

court wrongful death action, pled a cog-

nizable Sec. 1983 claim for at least nom-

inal damages for First and Fourteenth

Amendment violations. Ryland, 708 F.2d at

971-973 cites California Motor Transport

nlimited, 404 U.S. 508

(1972) (right of access to courts is

aspect of First Amendment right to peti-

tion); v. McDonn [ooeae U.S. 539,

579 (1974) (Due Process Clause protects

right of access to courts to present

claims concerning violations of funda-

mental constitutional rights); Logan vy.

Zimmerman, 455 U.S. 422, 428 (1982) (cause

of action is species of property® pro-

tected by Due Process Clause).

Ryland, 708 F.2d at 975 aptly

reasoned:

The defendants’ actions could have

®* In Ryland, 708 F.2d at 973, it is

noted that Ryland’s wrongful death action

had the "property" attribute of inherit-

ability under Louisiana law. In regard to

a Sec. 1983 claim, Smith v. City of Fon-

tana, 818 F.2d 1411, 1416-1417 (9th Cir.

1987), cert. denied, 108 S.Ct. 311 (1987),

holds that inheritability is determined by

state law and, in that regard, Sec.

46.021, Fla. Stat. treats Donner’s claims

as inheritable.

prejudiced the Rylands’ chances of

recovery in state court because the

resulting delay would cause stale

evidence and the fading of material

facts in the minds of potential wit-

nesses. Moreover, it could well prove

more expensive to litigate such

action. Finally, any interference

with a substantive constitutional

right, such as the right of access to

the courts, may by itself amount to a

constitutional deprivation (unless

reasonably justified by countervail-

ing state interest).

The allegations of Donner’s complaint

in Case No. 89-37625 are even more compel-

ling than were those in Ryland because

allegedly defendants’ under-color-of-

Sstate-law misconduct delayed for many

years and damaged Donner’s’' underlying

causes of action in Case No. 76-8301 that

included, not only state-law based claims

for false arrest and false imprisonment,

but also federally-based claims for First

and Fourteenth Amendment violations under

Sec. 1983.”

(b) RICO CAUSE OF ACTION

Donner’s complaint also stated ele-

ments of a RICO claim. Allegedly defend-

ants’*® conspired to send through the mail

Compare also Zinermon v. Burch, 110

S.Ct. 975 (1990) (availability of state

court remedy to correct Bill of Rights

violation does not foreclose Sec. 1983

action); Flores v. Perez, 617 F.2d 1386,

1388, 1392 (9th Cir. 1980), cert. denied,

449 U.S. 875 (1980) (Sec. 1983 damages for

mental anguish recoverable for discrimina-

tory state action resulting in delay);

Memphis Community School District v. Sta-

chura, 477 U.S. 299, 308 n. 11 (1986) (at

least nominal Sec. 1983 damages recover-

able for constitutional deprivation);

Davis v. Village Park II Realty Co., 578

F.2d 461, 463-464 (2d Cir. 1978) (Sec.

1983 damages recoverable for emotional

distress and, absent proof of actual in-

jury, nominal damages recoverable for con-

stitutional deprivation); Dykes v. Hose-

mann, 743 F.2d 1488, 1500 (llth Cir. 1984)

(en banc) (nominal and punitive Sec. 1983

damages recoverable).

*° It has been held that treble RICO

damages constitute a "penalty" for which a

City may not be held liable. Gentry v.

Township of Gloucester, 736 F.Supp. 1322

(D.N.J. 1990)However, the remaining

defendants are not thereby exempted.

an extended series of fraudulent pretrial

discovery responses, comprising a "pat-

tern"? of mail fraud violative of 18

U.S.C. Sec. 134177,**, extending over a

continuum of several years, depriving Don-

ner of her property interest in the claims

H.J., Inc. v. Northwestern Bell

Telephone Co., 109 S.Ct. 2893, 2901

(1989); see also Morley v. Cohen, 888 F.2d

1006 (4th Cir. 1989) (fraudulent 1976 and

1977 misrepresentation concealed until

1981).

‘2 U.S. v. Peters, 732 F.2d 1004,

1006-1007 (1st Cir. 1984) (affirming mail-

fraud conviction under count charging

false answers to pretrial discovery

interrogatories); U.S. v. Leyden, 842 F.2d

1026, 1029 (8th Cir. 1988), citing Peters

as illustrative of the applicability of

"mail fraud" to "legal proceedings"; U.S.

v. Vaughan, 797 F.2d 1485, 1492-1493 (9th

Cir. 1986) (affirming attorney’s mail

fraud conviction for petition and follow-

up letters he knew to be false in admini-

strative proceeding); Tafflin v. Levitt,

110 S.Ct. 792, 798-799 (1990) (many RICO

cases involve state fraud claims).

** 18 U.S.C. Sec. 1961(1) defines a

violation of sec. 1341 as a "racketeering

activity."

eee

she asserted in Case No. 76-8301.?%

Even if, arguendo, some element of

Donner’s RICO action were pled imperfect-

ly, that circumstance could not explain

either the initial complaint’s dismissal

with prejudice or the Third District’s

affirmance of that dismissal with preju-

dice. Such a dismissal would be precluded,

first, by her well-pled Sec. 1983 claim

and, second, by Florida cases uniformly

holding that a plaintiff is entitled to at

least one opportunity to amend unless the

allegations of the complaint confirm that

amendment would be futile. Posey _v.

Magill, 530 So.2d 985 (Fla. Dist. Ct. App.

1988); Highlands County School Board v.

K.D. Hedin Construction, Inc., 382 So.2d

‘* Logan v. Zimmerman, 455 U.S. 422,

428 (1982) (cause of action is species of

property protected by Due Process Clause).

90 (Fla. Dist. Ct. App. 1980); Tucker v.

Bray, 458 So. 2d 841, at 842 (Fla. Dist.

Ct. App. 1984). Wells Fargo Armored Ser-

vices Corp. <. Sunshine Security &

Detective Agency, Inc., 575 So. 2d 179

(Fla. 1991) recently held:

"... Florida recognizes a rule favor-

ing a right of amendment after a par-

ty has failed to state a cause of ac-

tion ... denial of a right to amend

Simply because prior attempts’ to

state a cause of action have failed

may be deemed an abuse of discre-

tion.*

Nothing in the complaint at bar suggests

that any such amendment would be "futile."

Donner’s appellate briefs clearly adverted

the attention of the Third District to

these points of law.

The foregoing analysis of the allega-

tions within the four corners of the com-

plaint demonstrates that, in accordance

with Street, 394 U.S. 576, the trial

court’s erroneous dismissal with preju-

dice** of Donner’s federal causes. of

action was preserved for the Third Dis-

trict’s review.

2 ERV N OF ISSUES ON

On appeal to the Third District,

those issues were equally well preserved

for review in Donner’s initial and reply

briefs and in her motion for rehearing.

‘*° The affirmance of the dismissal

"with prejudice" is not altered by the

Third District’s footnoted comment that

its opinion should not be read as barring

a motion for leave to amend in Case No.76-

8301. That footnote stops short of allow-

ing an amendment that would add as causes

of action those claims dismissed in the

case at bar. If the Third District’s in-

tent were to allow such an amendment, it

would, instead of affirming the dismissal

with prejudice, have reversed with direc-

tions to enter a dismissal without preju-

dice to a motion for leave to amend in

Case No. 76-8301 to add such causes of ac-

tion. Such an amendment in Case No. 76-

8301, especially one adding as parties the

attorneys, would now in any event be con-

fronted by a statute of limitations de-

fense.

Section C of the prefatory Statement of

the Case, ante, summarizes those issues

and arguments, fully presented in her ini-

tial and reply briefs and in her appellate

motion for rehearing. In fact, as an

alternative to rehearing, Donner requested

that the Third District clarify its opin-

ion by making specific reference to the

federal nature of the issues; that request

was likewise denied. According to the

Florida Supreme Court’s pronouncements in

Pizzi, 250 So.2d at 896-897, the only

lower court record that was needed for

review of the propriety of the order of

dismissal was the complaint itself,

included in the record below. Thus, the

Third District’s omission of any mention

of the federal nature of the causes of

action and its reliance only upon Florida

case law is not an impediment to this

os copacieenienmaasameaaiameemaa acme

Court’s exercise of its certiorari juris-

diction pursuant to Street, 394 U.S. 576

to review that Third District decision.

B. STATE COURTS MUST APPLY FEDERAL,

LAW TO ISSUES OF IMMUNITY IN

REGARD TO FEDERAL ACTIONS

A similar error was committed by the

Third District’s sister court in Howlett

v. Bose, $37 So. 24-706 (Fla. Dist. CE.

App. 1989), rev. denied, 545 So. 2d 1367

(Fla. 1989), rev’d sub nom. Howlett by and

through Howlett v. Rose, 110 S.Ct. 2430

(1990). In that Sec. 1983 case, the Flor-

ida court likewise eschewed federal law

and instead invoked

a Florida doctrine of

municipal immunity. In reversing that

decision, this Court held in Howlett, 110

S.Ct. at 2443-2444:

"The elements of, and the defenses

to, a federal cause of action are

defined by federal law."

"’Congress surely did not intend to

assign to state courts and legisla-

tures a conclusive role in the form-

ative function of defining and char-

acterizing the essential elements of

a federal cause of action."’

Howlett, 110 S.Ct. at 2443, cites Martinez

v. State of California, 444 U.S. 277, 284

(1980), holding:

"’Conduct by persons acting under

color of state law which is wrongful

under 42 U.S.C. Sec. 1983 ... cannot

be immunized by state law...’"

Ce FEDERAL LAW DOES NOT IMMUNIZE

DEFENDANTS’ ALLEGED MISCONDUCT

Defendants’ alleged misconduct is not

accorded any immunity under federal law.

1. NO SUCH IMMUNITY ARISES UNDER 42

U.S.C. SEC. 1983

On the issue of immunity under Sec.

1983, Briscoe v. LaHue, 460 U.S. 325

(1983) held that American common law, as

found to exist in 1871, is controlling.

That case narrowly limited its holding

just to the absolute immunity applicable

to a witness’ allegedly perjured trial

testimony (not to non-testimonial miscon-

duct such as is at issue in the case at

bar). Briscoe, 460 U.S. at 332 n.12,

quotes with approval the declaration in

Johnson v. Brown, 13 W.Va. 71, 128-129

(1878) that the overwhelming weight of

authority precluded "an action of slander

or libel ... for libelous matter, spoken

or written in the course of regular judi-

Cial proceedings."** In that regard, Tower

v. Glover, 467 U.S. 914, 922 (1984) recog-

nizes that, "at common law, defense coun-

sel would have benefited from immunity for

‘© The Third District’s affirmance of

the dismissal with prejudice of Donner’s

Claim, erroneously grounded on immunity,

Stopped short of otherwise considering the

legal sufficiency of her claims. Briscoe,

460 U.S. at 328 n.3, accepted jurisdiction

to review a lower appellate court deci-

sion, grounded solely on immunity, even

though that lower court had not passed

upon whether the Sec. 1983 claim was

otherwise well pled.

defamatory statements in the course of

judicial proceedings," citing Justice

White’s concurrence in Imbler v. Pachtman,

424 U.S. 409, 439 (1976) (both prosecutors

and private attorneys’ "false and defama-

tory statements" "made during and relevant

to a judicial proceeding" are immune). In

that same regard, Burns v. Reed, 111 S.Ct.

1934, 1941 (1991) recognizes that, at com-

mon law, witnesses, prosecutors, and law-

yers were immune from liability for "false

or defamatory statements in judicial pro-

ceedings." Justice Scalia’s partial con-

currence in Burns, 111 S.Ct. at 1946-1947

lists just three categories of immunity,

"Judicial immunity," "Quasi-judicial im-

munity," and "Defamation immunity." Since

defendants in the case at bar exercised no

judicial or quasi-judicial functions, that

would leave only the third category to be

considered. Consistent with the foregoing

precedents is Justice Scalia’s additional

assertion that the third category of im-

munity extends "only against suits for

defamation." Id,

(a) DONNER’S SEC. 1983 CLAIMS ARE

ON; NO

CONCEALMENT OF INFORMATION EVEN

(ofe) U = MENT"

Donner’s suit is not for "defamation"

for the following reasons. First of all,

the City’s failure to produce, and con-

cealment of, records requested in pretrial

discovery and in the public records demand

did not even constitute "statements," much

less defamation. Secondly, defendants’

false pretrial discovery responses that

witnesses are unknown and that all re-

quested records had been produced were not

defamatory; rather they prejudicially de-

prived plaintiff of access to witnesses

and delayed access to records useful to

her prosecution of Case No. 76-8301.

Thirdly, neither defendants’ response that

they would produce the demanded public

records "when donkeys fly" nor their years

of refusal to comply with Donner’s access

to those public records could be categor-

ized as "defamation"; rather the complaint

alleges that their conspiracy to conceal

information was thereby furthered and the

prejudicial litigation delay exacerbated.

(b) DEFE : 0) ON “

PU O UR-

y C O

CONCEA W O "IN A

JUDICIAL PROCEEDING"

Absolute immunity for that conspir-

acy, aS it relates to defendants’ wrongful

refusal of Donner’s public records demand,

is precluded for yet another’ reason:

neither the demand nor the refusal was "in

the course of judicial proceedings."

Burns, 111 S.Ct. at 1941; Tower, 467 U.S.

et $22; Briscoe, 460 U.S. at 332 n.12.

Imbler, 424 U.S. at 426 n.23, limits "de-

famation" immunity to relevant "courtroom

statements" and to lawyers’ "briefs and

pleadings." While the demanded public re-

cords related to Case No. 76-8301, the

complaint alleges that Donner’s demand and

defendants’ refusal took place, not in

that case, not in any judicial proceeding,

courtroom, pleading or brief, but rather

under Sec. 119.01 et seq., Fla. Stat.

(1975) (allowing public access to public

records upon demand). Only after the City

and its records custodians extrajudicially

failed to comply with that demand was the

mandamus proceeding instituted.’*’,*®

*” See also opinion below’s discussion

of the course of events in the mandamus

proceeding and its citation to the appel-

late decisions in that proceeding: Donner

v. Edelstein, 415 So.2d 830 (Fla. Dist.

Ct. App. 1982) and Edelstein v. Donner,

450 So.2d 562 (Fla. Dist. Ct. App. 1984),

PRODUCTION WERE UNKNOWN TO THE

COMMON W

Pretrial discovery interrogatories,

answers to interrogatories, requests for

production, and responses to requests for

production were unknown to the common law

in 1871; nor did they have any analogous

counterpart at common law. Although one

might argue that defamatory statements

included in any such answers and responses

meet are "in a judicial proceeding" and

therefore immunized, no similar argument

may be advanced and no 1871 common-law

precedent may be found with regard to

statements, included in such answers or

responses, that are not defamatory, but

are fraudulent (such as are at issue in

approved, 471 So.2d 26 (Fla. 1985).

| L944

** Compare Burns, at 4—@ £(out-of-

court legal advice held not absolutely

immune)

the case at bar). Analogously, in Burns,

111 S.Ct. at 1943, this Court rejected the

amicus curiae’s attempt to alibi the

absence of 1871 precedents for immunity;

the rejected alibi was that the office

sought to be immunized first developed

after that date. Quoting Tower, 467 U.S.

at 922-923, this Court in Burns at 1943

TyiSuy ty ea

\ that argument as follows:

"We do not have a license to estab-

lish immunities from Sec. 1983 ac-

tions in the interests of what we

judge to be sound public policy."

Pretrial discovery sanctions were of

course also unknown to the common law.

Application of the doctrine of immunity to

pretrial discovery cannot be rationalized

by pointing to modern pretrial discovery

Sanctions as an alleged equivalent substi-

tute. Discovery sanctions do not fill that

role. For example, in the case at bar,

allegedly defendants’ discovery misconduct

prejudicially diminished the amount of the

verdict that Donner secured against Dade

County and its correctional officers. No

manner of discovery sanction could be

fashioned to recoup those damages. No dam-

ages, other than attorneys fees and costs,

are awarded as a discovery sanction. More-

over, discovery sanctions are imposed

against only the party to whom the discov-

ery is directed; no discovery mechanism

exists for sanctions against other persons

(such as attorneys and insurer) conspiring

with them to make fraudulent discovery re-

sponses. Even if those persons were to be

held in contempt of court, that would not

obviate the damage that Donner suffered.

Immunity for fraudulent pretrial discovery

responses has been rejected in Beeck v.

Kapalis, 302 N.W.2d 90 (Iowa 1981) and

Morgan v. Graham, 228 F.2d 625 (10th Cir.

Lee

1956) (applying state law). Furthermore,

in the light of a Sec. 1983 claimant’s en-

titlement to proceed with his claim with-

out first exhausting state tort remedies

Or other state postdeprivation remedies,

cf. Zinermon v. Burch, 110 S.Ct. 975

(1990), the mere fact that there now exist

possible state court discovery sanctions

Should not foreclose the federal remedy.

(d) COMPLAINT DOES NOT ALLEGED THAT

CONSPIRACY WAS ENTERED INTO "IN

A_ JUDICIAL PROCEEDING"

Even without regard to any of the

foregoing considerations, the facts remain

that the complaint alileges defendants’

misconduct was pursuant to a "conspiracy"

and that nowhere in the complaint is it

alleged that the conspiracy was itself

| hatched "in a judicial proceeding."

For example, the conspiracy necessar-

ily predated the mailing of the City’s

fraudulent interrogatory answers that were

the product of the conspiracy. Even if the

act of serving those answers by mail were,

arguendo, assumed at that time to intro-

duce them into the "judicial proceeding"

and to render them "defamatory," nonethe-

less, the antecedent conspiracy would sat-

isfy neither of those two requirements.

Analogously, in Tower, 467 U.S. at

922, this Court held public defenders not

to be immune from Sec. 1983 liability for

their alleged conspiracy to cause a crim-

inal defendant’s conviction, even though

any such alleged conspiracy must have been

hatched after those public defenders were

appointed (and therefore during the time

when that judicial proceeding was pending)

and even though that conspiracy was alleg-

edly implemented in the criminal proceed-

ing.

Burns, i111 S.Ct. at 1939, aptly

states that the person

"... seeking absolute immunity bears

the burden of showing that such im-

munity is justified ... We have been

‘quite sparing’ in our recognition of

absolute immunity, Forrester, supra,

at 224, and have refused to extend it

any ‘further than its justification

would warrant.’ Harlow, supra, at

Ghais™

Applying the above-quoted rule to this

case, in the light of the fact that the

complaint does not allege that the con-

Spiracy was hatched in a judicial proceed-

ing and in the light of the rule in Pizzi,

250 So.2d 895 that, on a motion to dismiss

for failure to state a cause of action,

only the allegations within the four cor-

ners of the complaint may be considered,

defendants could not possibly have satis-

fied their "burden" to show that their

conspiracy was absolutely immune. It is

evident that the Third District has ex-

> ———————<

tended the scope of immunity, not "spar-

ingly," but rather with the broadest pos-

Sible brush, outside the parameters pre-

scribed by this Court’s prior decisions.

2. NO SUCH IMMUNITY ARISES UNDER

FEDERAL CIVIL RICO

The immunity issue is also readily

disposed of in the context of RICO. The

RICO claim arises under 18 U.S.C. Sec.

1964(c), providing a civil remedy with

regard to conduct subject to criminal

penalties under the correlative Sec. 1963.

In that sense, it differs from a Sec. 1983

claim, restricted to the civil arena.

Briscoe, 460 U.S. at 339 n.22 recognizes

that there is no immunity from criminal

prosecution for statements made in the

course of judicial proceedings. Thus, no

such immunity can be invoked on the civil

Side in regard to the double-edged RICO

statute. Since there is no immunity from

QE ee

the parallel criminal RICO liability for

statements made during judicial proceed-

ings,’® neither is there any such priv-

ilege under civil RICO. Hence, even if

such a privilege were applicable under

Sec. 1983, it would not apply under RICO.

Il. DISCRETION SHOULD BE EXERCISED

IN FAVOR OF ACCEPTING CERTIORARI

JURISDICTION

Certiorari jurisdiction should be

accepted not only because of the foregoing

analysis demonstrating the conflicts be-

tween the Florida state court decision and

the decisions of this Court and of the

"* Dee Vs. Patera, “732 7.28 10064,

100°-1007 (1st Cir. 1984) (affirming mail-

fraud conviction under count’ charging

false answers to- pretrial discovery

interrogatories); U.S. v. Leyden, 842 F.2d

1026, 1029 (8th Cir. 1988), citing Peters

aS illustrative of the applicability of

"mail fraud" to "legal proceedings"; U.S.

Vv. Vaughan, 797 F.2d 1485, 1492-1493 (9th

Cir. 1986) (affirming attorney’s’ mail

fraud conviction for petition and follow-

up letters he knew to be false in admini-

strative proceeding).

Courts of Appeal asgt but also because the

conflict concerns important immunity,

Civil rights, and RICO issues.

The Third District’s decision de-

prives Donner of any federal remedy for

this extreme interference with her access

to the courts to vindicate her state-law

based claims for false arrest, false

imprisonment and cruel and inhumane

conditions’) of incarceration and her

federally-based Sec. 1983 claims for First

and Fourteenth Amendment civil rights

violations. Justice delayed is justice

denied. In this case, justice has been

delayed over sixteen years. Neither a

municipal defendant nor its attorney nor

its insurer nor any other person in con-

Spiracy with them ought be privileged (via

fraudulent pretrial discovery and public

records misconduct) to delay a plaintiff’s

access to the courts for so many years.

CONCLUSION

For all of the foregoing reasons, the

jurisdiction of this Court should be in-

voked to review the decision below.

Respectfully submitted,

MIRIAM DONNER

iy”

ae ee ts

Ae ae aes SD Se ae i |

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

MIRIAM DONNER,

Petitioner,

vs.

APPALACHIAN INSURANCE COMPANY, a Rhode

Island corporation, CITY OF MIAMI, VERNON

HETHERINGTON, FOWLER, WHITE, BURNETT, HUR-

LEY, BANICK & KNIGHT, P.A. a/k/a FOWLER,

WHITE, BURNETT, HURLEY, BANICK & STRICK-

ROOT, P. A., a Florida professional

association, PHILLIP W. KNIGHT, and

MICHAEL J. MURPHY,

Respondents

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

MIRIAM DONNER, Appellant,

¥.

APPALACHIAN INSURANCE COMPANY, A Rhode Is-~-

land corporation; City of Miami; Vernon

Hetherington; Fowler, White, Burnett, Hur-

ley, Banick & Knight, P.A. a/k/a Fowler,

White, Hurley, Banick & Strickroot, P.A.,

a Florida professional association; Phil-

lip W. Knight, and Michael J. Murphy,

Appellees.

No. 90-1222

District Court of Appeal of Florida,

Third District.

May 7, 1991.

Rehearing Denied July 3, 1991.

Before SCHWARTZ, C.J., and

JORGENSON and GODERICH, JJ.

JORGENSON, Judge.

Miriam Donner appeals from an order

dismissing her complaint with prejudice.

We affirm.

This appeal is the latest ina fif-

teen-year-old litigation morass. Ms. Don-

ner’s original action was filed in 1976

and sought damages for injuries arising

from her arrest and the circumstances of

her incarceration. Following a series of

false starts, frustrated discovery forays,

and appeals,’ the 1976 action languishes

below awaiting retrial. In 1981, Ms. Don-

ner sued the City of Miami and various

attorneys, seeking access to the litiga-

tion files from the suit filed in 1976.

Eventually, the court ordered those files

produced.? In 1989, Ms. Donner sued the

parties and attorneys involved in the

previous lawsuits for multiple causes of

action arising from alleged fraudulent

misrepresentations made during the discov-

ery in the 1976 action, which only came to

* See Donner v. Hetherington, 399

So.2d 1011 (Fla. 3d DCA 1981); Donner v.

Hetherington, 376 So.2d 404 (Fla. 3d DCA

1979); Donner v. Hetherington, 370 So.2d

1225 (Fla. 3d DCA 1979).

See Edelstein v. Donner, 450 So.2d

562 (Fla. 3d DCA 1984), approved, 471

So.2d 26 (Fla.1985); Donner v. Edelstein,

425 So.2d 1220 (Fla. 3d DCA 1983); Donner

v. Edelstein, 423 So.2d 367 (Fla. 3d DCA

1982); Donner v. Edelstein, 415 So.2d 830

(Fla. 3d DCA 1982).

light following production of the litiga-

tion files. The trial court dismissed that

complaint with prejudice for failure to

state a claim; Ms. Donner appeals.

We agree with the trial court that

the complaint Ms. Donner filed in this

action failed to state a cognizable claim.

See Ponzoli & Wassenberg, P.A. v. Zucker-

man, 545 So.2d 309 (Fla. 3d DCA), (state-

ments made in the course of judicial pro-

ceeding enjoy absolute privilege); rev.

denied, 554 So.2d 1170 (Fla. 1989); Wright

v. Yurko, 446 So.2d 1162 (Fla. 5th DCA

1984); Perl v. Omni Int’l of Miami, Ltd.,

439 So.2d 316 (Fla. 3d DCA 1983) (same).

We therefore affirm the dismissal .?

* Our affirmance should not be read to

bar Ms. Donner from seeking to amend her

complaint pending in the circuit court or

from asking the trial court to impose

sanctions against the defendants for their

alleged misconduct in the discovery pro-

ceedings.

We assign no fault to either party

for the length of this litigation. How-

ever, "(i]t has been well said that there

must be some point in every court proceed-

ing when the cause is finally disposed of,

its thread cut, and parties out of court

... The public welfare demands that there

shall be some definite end to litigation--

a point sometime, somewhere, when every

case is terminated. We cannot afford to

return to the interminable and outrageous

practice similar to that depicted in Dick-

ens’ case of Jarndyce v. Jarndyce." Mabson

v. Christ, 96 Fla. 756, 759, 119 So. 131,

132 (1928). We trust that trial of this

cause will occur before the litigation

assumes such Dickensian proportions.

Affirmed.

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT IN

AND FOR DADE COUNTY,

FLORIDA,GENERAL

JURISDICTION DIVISION

CASE NO: 89-37625 CA17

MIRIAM DONNER,

Plaintiff,

vs.

APPALACHIAN

INSURANCE COM-

PANY, a Rhode

Island corpor-

Stion, et al.,

Defendants.

FINAL ORDER OF DISMISSAL AND ORDER

DENYING PLAINTIFF’S MOTION TO STAY

THIS CAUSE came to be heard on Tuesday,

March 20, 1990, upon the Defendants, APPA-

LACHIAN INSURANCE COMPANY; FOWLER, WHITE,

BURNETT, HURLEY, BANICK & KNIGHT, P.A.,

a/K/a FOWLER, WHITE, BURNETT, HURLEY, BAN-

ICK & STRICKROOT, P.A., PHILLIP WwW. KNIGHT,

MICHAEL J. MURPHY, VERNON HETHERINGTON,

and the CITY OF MIAMI, Motion To Dismiss

Complaint, and Plaintiff’s Motion To Stay

Proceedings, and the Court having heard

argument of Plaintiff and counsel, and

being otherwise fully advised in the pre-

mises, it is hereby

ORDERED AND ADJUDGED:

1. Plaintiff’s Motion to Stay is

denied;

2. Defendants’ Motion To Dismiss Com-

plaint is granted, with prejudice.

3. Plaintiff shall go hence without

day and recover nothing from the Defend-

ants, APPALACHIAN INSURANCE COMPANY; FOW-

LER, WHITE, BURNETT, HURLEY, BANICK &

KNIGHT, PeAs,» a/k/a FOWLER, WHITE,

BURNETT, HURLEY, BANICK & STRICKROOT,

P.A., PHILLIP W. KNIGHT, MICHAEL J.

MURPHY, VERNON HETHERINGTON, and the CITY

OF MIAMI.

DONE AND ORDERED in Chambers at

Miami, Dade County, Florida, this 22 day

Of March, 1990.

GEORGE ORR

CIRCUIT COURT JUDGE

Entered March 27, 1990

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT oF

FLORIDA IN AND FOR DADE

COUNTY

GENERAL JURISDICTION

DIVISION

CASE NO: 89-37625 CA 17

MIRIAM DONNER,

Plaintiff,

vs.

APPALACHIAN

INSURANCE COM-

PANY, a Rhode

Island Corpor-

ation, et al.,

Defendant(s):

ORDER ON PLAINTIFF’S MOTION FOR REHEARING

AND ADDENDUM TO MOTION FOR REHEARING

There having been served and filed by

Plaintiff a Motion for Rehearing and Add-

endum to Motion for Rehearing and the same

having come on for hearing before the

Court on April 26, 1990 and the Court hav-

ing heard argument of Plaintiff and De-

fense counsel, it is hereby ORDERED and

DONE and ORDERED in Chambers at Miami, in

Dade County, Florida this 26th day of

April, i990.

GEORGE ORR

CIRCUIT JUDGE —~»

SUPREME COURT OF FLORIDA

TUESDAY, OCTOBER 29, 1991

MIRIAM DONNER, *

Petitioner, * CASE NO. 78,309

Vv. * DISTRICT COURT OF

* APPEAL, 3RD DISTRICT

APPALACHIAN INSUR- * NO. 90-1222

ANCE COMPANY, ETC., *

ET AL., *

Respondents. *

This cause having heretofore been

Submitted to the Court on jurisdictional

briefs and portions of the record deemed

necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Consti-

tution (1980), and the Court having

determined that it should decline to

accept jurisdiction, it is ordered that

the Petition for Review is denied.

No Motion for Rehearing will be

entertained by the Court. See Fla. R. App.

P. 9.330 (qd).

OVERTON, Acting C.J., MCDONALD, GRIMES,

KOGAN and HARDING, JJ., concur

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D.1991

JULY 3, 1991

MIRIAM DONNER, xe CASE NO. 90-01222

Appellant(s), **

Vs. x

APPALACHIAN INSUR- ** LOWER

ANCE COMPANY, et Sl., TRIBUNAL NO. 89-

37625

Appellee(s). **

Upon consideration, appellant’s

motions for rehearing, certification or

Clarification and rehearing en banc is

hereby denied. Appellees’ motion for

Clarification of decision is denied.

CONSTITUTIONAL PROVISIONS AND STATUTES

Const., amend. I reads as follows:

Congress shall make no law re-

specting an establishment of reli-

gion, or prohibiting the free exer-

cise thereof; or abridging the free-

dom of speech, or of the press; or

the right of the people peaceably to

assemble, and to petition the Govern-

ment for a redress of grievances.

Const., amend XIV, sec. 1 reads in

pertinent part:

No State shall make or en-

force any law which shall abridge the

privileges or immunities of citizens

of the United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law;

.S.C. section 1983 reads in pertinent

part:

Every person who, under color of

any statute, Ordinance, regulation,

custom, or usage, of any State or

Territory or the District Of Colun-

bia, subjects, or causes to be sub-

jected, any citizen of the United

States or other person within the

jurisdiction thereof to the depriva-

tion of any rights, privileges, or

immunities secured by the Constitu-

tion and laws, shall be liable to the

party injured in an action at law,

Suit in equity, or other proper pro-

ceeding for redress.

18 U.S.C. section 1961 (1970) (amended

1984, 1986, 1988, and 1989) reads in

pertinent part:

As used in this chapter--

(i) "racketeering activity"

means... (B) any act which is

indictable under ... section 1341

(relating to mail fraud)

* ® *

(4) “enterprise" includes any

individual, partnership, corporation,

association, or other legal entity,

and any union or group of individuals

associated in fact although not a

legal entity;

($) "pattern of racketeering

activity" requires at least two acts

of racketeering activity, one of

which occurred after the effective

date of this chapter and the last of

which occurred within ten years (ex-

cluding any period of imprisonment)

after the commission of a prior act

of racketeering activity;

18 U.S.C. section 1962 (1970) (amended

1988) reads in pertinent part:

(b) It shall be unlawful for any

person through a pattern of racket-

eering activity or through collection

of an unlawful debt to acquire or

“ maintain, directly or indirectly, any

interest in or control of any enter-

prise which is engaged in, or the

activities of which affect, inter-

State or foreign commerce.

person employed by or associated with

any enterprise engaged in, or the

activities of which affect, inter-

State or foreign commerce, to conduct

Or participate, directly or indirect-

ly, in the conduct of Such enter-

prise’s affairs through a pattern of

racketeering activity or collection

Of unlawful debt.

(d) It shall be unlawful for any

person to conspire to violate any of

the provisions of subsections (a),

(b), or (c) of this section.

is U.s.@, section 1964(c) reads in

pertinent part:

Any person injured in his busi-

ness or property by reason of a vio-

lation of section 1962 of this chap-

ter may sue therefor in any appropri-

ate United States district court and

Shall recover threefold the damages

he sustains and the cost of the suit,

including ‘a reasonable attorney’s

fee.

18 U.S.C. section 1341 (1970) {amended

1988) reads in pertinent part:

Whoever, having devised or intending

to devise any scheme or artifice to

defraud ... for the purpose of exe-

cuting such scheme or artifice or

attempting to do SO, places in any

post office or authorized depository

for mail matter, any matter or thing

whatever to be sent or delivered by

the Postal Service ... or knowingly

Causes to be _ delivered by mail

according to the directions thereon,

Or at the place at which it is dir-

ected to be delivered by the person

to whom it is addressed, any such

matter or thing, shall be fined not

more than $1,000 or imprisoned not

more than five years, or both.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.