Janklow v. Keller, s. 11588

Decision Date23 April 1976
Docket NumberNos. 11588,11589,s. 11588
Citation90 S.D. 322,241 N.W.2d 364
PartiesWilliam 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.
CourtSouth Dakota Supreme Court

Charles Rick Johnson of Johnson, Johnson & Eklund, for plaintiffs and appellants.

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

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 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 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.

'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 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 Court, denied the motion for removal and remanded Hill's case to the state courts for trial.

In his memorandum opinion, Judge Bogue commented as to the above-quoted statements in Hill's petition as follows:

'On the stand in this action, Mr. Keller admitted that when he signed the petition he had not read the petition, in direct violation of the dictates of Rule 11 of the Federal Rules of Civil Procedure. Furthermore, when questioned about the 'apparently inebriated' condition of the respondents, Mr. Keller said that his definition of 'apparently inebriated' was anyone who had one drink. Furthermore, he stated he assumed that anyone who was in a bar at any late hour must be drunk. This was so even though the bar in which the respondents were in, is also a restaurant. In fact, it is undisputed that Mr. Janklow does not drink at all. Furthermore, there is no question but that Mr. Christiansen had had nothing to drink at all. This Court must simply say that the testimony of John Keller is not believable and will be rejected in totality.'

By separate complaints, each of the plaintiffs instituted suit against the defendants. Each complaint is in two counts. Count I is based on the theory of deceit under SDCL 16--18--19, 16--18--26(1) and 16--19--3, alleging that the statements in the petition, and particularly Paragraph 13 thereof, were unlawful, intentional, wrongful and malicious; that the defendants knew, or should have known, that the statements relative to each plaintiff were false and irrelevant; that the statements were made to injure the plaintiff and to falsely mislead the United States District Court and the state courts of South Dakota. Each plaintiff in Count I alleged damages, including mental anguish, damage to credibility and profession, and asked for one million dollars actual damages trebled, and exemplary damages of one million dollars.

Count II of each complaint is based on defamation and libel. Count II in each complaint realleged the matters set forth in Count I, and alleged that the publication in the petition for removal was not privileged because it was knowingly false, made maliciously with an intent to disgrace and injure the plaintiff, was totally immaterial and irrelevant to any judicial purpose, and brought about unnecessary publicity of irrelevant matters. Each plaintiff, by his cause of action set forth in Count II of his complaint, seeks judgment against the defendants for actual damages in the amount of one million dollars, and one million dollars exemplary damages.

The defendants moved to dismiss each of the actions on the ground, among others, that the complaints failed to state a cause of action upon which relief could be granted. Judge James R. Bandy granted the motions to dismiss in each case. It is from the orders of dismissal that these appeals have been taken.

The trial court in dismissing each action accepted defendants' contention that the statements in Paragraph 13 of the petition for removal were privileged communication within the definition of SDCL 20--11--5(2), and the defendants were thereby granted absolute immunity.

Plaintiffs take a position that under the circumstances here shown the offending statements were not privileged under SDCL 20--11--5(2) to justify the dismissals under absolute immunity. The pertinent part of SDCL 20--11--5 provides as follows:

'A privileged communication is one made:

(1) In the proper discharge of an official duty (2) In any legislative or judicial proceeding, or in any other official proceeding authorized by law * * *.'

Restatement, Torts, at page 229 states:

' S 586. ATTORNEYS AT LAW.

'An attorney at law is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation thereto.

Comment:

'a. The privilege stated in this Section is based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. Therefore the privilege is absolute. It protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth or even his knowledge of its falsity. These matters are of importance only in determining the amenability of the attorney to the disciplinary power of the court of which he is an officer. The publication of defamatory matter by an attorney is protected not only when made in the institution of the proceedings or in the conduct of litigation before a judicial tribunal, but in conferences and other communications preliminary thereto. The institution of a judicial proceeding...

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13 cases
  • Hein v. Acuity
    • United States
    • Supreme Court of South Dakota
    • April 18, 2007
    ...193, 194. The responsive pleadings of which Hein complains falls squarely within the elements set forth in Janklow v. Keller, 90 S.D. 322, 331, 241 N.W.2d 364, 368 (1976). [¶ 28.] Hein bases her bad faith claim on Acuity's failure to conduct a reasonable investigation and failure to acknowl......
  • Bennett v. JONES, WALDO, HOLBROOK
    • United States
    • Supreme Court of Utah
    • April 1, 2003
    ...by the common law judicial proceeding privilege. See DeBry v. Godbe, 1999 UT 111, ¶ 25, 992 P.2d 979; see also Janklow v. Keller, 90 S.D. 322, 241 N.W.2d 364, 367, 370 (1976) (citing Restatement of Torts § 586, at 229, and holding that where complaint alleged that defendant attorneys had fi......
  • Janklow v. Newsweek, Inc., 84-1452
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 22, 1985
    ...where the article was privileged under state or federal law or the record showed no evidence of actual malice. 2 See Janklow v. Keller, 90 S.D. 322, 241 N.W.2d 364 (1976); Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705 (1969). Thus, that the article here in question is susceptible to a de......
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