241 N.W.2d 364 (S.D. 1976), 11588, Janklow v. Keller

Docket Nº:11588, 11589.
Citation:241 N.W.2d 364, 90 S.D. 322
Opinion Judge:The opinion of the court was delivered by: Hall
Party Name:William JANKLOW, Plaintiff and Appellant, v. John KELLER et al., Defendants and Respondents. Bernard CHRISTIANSEN, Plaintiff and Appellant, v. John KELLER et al., Defendants and Respondents.
Attorney:Charles Rick Johnson of Johnson, Johnson & Eklund, for plaintiffs and appellants.
Case Date:April 23, 1976
Court:Supreme Court of South Dakota

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241 N.W.2d 364 (S.D. 1976)

90 S.D. 322

William JANKLOW, Plaintiff and Appellant,


John KELLER et al., Defendants and Respondents.

Bernard CHRISTIANSEN, Plaintiff and Appellant,


John KELLER et al., Defendants and Respondents.

Nos. 11588, 11589.

Supreme Court of South Dakota.

April 23, 1976

[90 S.D. 323] Charles Rick Johnson of Johnson, Johnson & Eklund, for plaintiffs and appellants.

D. R. Herman of Herman & Wernke, Gregory, for defendant and respondent, John Keller.

[90 S.D. 324] Sidney B. Strange of Strange & Lyons, Sioux Falls, Dennis Roberts, Oakland, Cal., Mary K. O'Melveny of Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, for defendants and respondents, Mark Lane and William Kunstler.

HALL, Circuit Judge.

The captioned cases, which arise from the same facts and present the same legal questions, were argued together and will be dealt with together in this opinion.

Plaintiff-appellants brought these actions seeking damages for the defendants for deceit and defamation. The trial court dismissed

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each action for failure to state a claim upon which relief could be granted. Basically, the dismissals were on the grounds that the statements complained of were privileged under SDCL 20--11-5(2) because they were made in a judicial proceeding by counsel, and the statements had some relation to the judicial proceeding. Plaintiffs have appealed from the orders of dismissal. We affirm.

David Hill was a defendant in a state court prosecution charging him and others with riot, arson and similar offenses arising out of American Indian demonstrations at Custer, South Dakota, on February 6, 1973. He was represented by attorneys Keller, Lane and Kunstler. The plaintiff, William Janklow, was a special prosecutor handling the criminal action for the State of South Dakota; the plaintiff, Bernard Christiansen, was an agent of the Division of Criminal Investigation for the State of South Dakota and one of the principal witnesses for the state in the prosecution of the criminal actions. The cases against Hill and other defendants had been the subject of widespread publicity.

On December 10, 1973, Hill, through his attorneys, filed a petition with the United States District Court for the District of South Dakota for removal of the state court criminal action to the federal court. 28 U.S.C. 1443(1) allows removal of a state criminal action to federal court upon a showing that the case is '(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil [90 S.D. 325] rights of citizens of the United States, or of all persons within the jurisdiction thereof.' The petition was signed by the three defendants, John Keller, Mark Lane and William Kunstler, as attorneys for Hill.

A part of the petition for removal was us follows:

'11. Both before and after September 30, 1973, said John Fitzgerald, who had indicated that he wished to assist the Custer defendants, met with Mark Lane and John Keller, defendant's attorneys and other attorneys associated with the defense * * * as well as with the legal workers thereto. Furthermore, said John Fitzgerald used the facilities of his office to make xerox copies of the files maintained by defendant's lawyers. Moreover, trial strategy for the Custer cases was discussed by counsel and defendants in Mr. Fitzgerald's presence at meetings held in his office and in the Custer County Jail, among others.

'12. Accordingly, petitioner was shocked to learn in late November of 1973 that Mr. Fitzgerald said that he had been appointed chief trial counsel for the South Dakota Attorney General's Office. Petitioner was further informed that Mr. Fitzgerald had been under consideration for said position prior to many of the said consultations and conferences with defense counsel.

'13. During the early hours of December 1, 1973, John Keller observed Bernard Christiansen, the chief witness against petitioner and the alleged victim of the crimes with which he is charged, drinking and in an apparently inebriated condition, together with the said John Fitzgerald and respondent William Janklow, both of whom were in the same condition, and others associated with the Attorney General's office, including respondent Kermit Sande, in the bar located in the Alex Johnson Hotel, Rapid City, South Dakota.

[90 S.D. 326] '14. Prior thereto and on or about November 20, 1973, after he had agreed to join the Attorney General's staff, Mr. Fitzgerald informed Gail Sullivan, a legal worker associated with the defense, that respondent William Janklow had called him to discuss the Custer cases.

'15. This obvious invasion of the defense camp has deprived petitioner of rights guaranteed to him by the

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constitution and laws of the United States.'

Prior to hearing on the petition the news media gave extensive publicity to the contents of Paragraph 13.

The State of South Dakota resisted the petitioner's motion for removal of the case to federal court and filed a motion to remand the action to the state courts. An evidentiary hearing was held in the United States District Court in December of 1973, and the Honorable Andrew W. Bogue, Judge of the United States District...

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