Petition — Prochaska v. Marcoux
Supreme Court brief1981
Ask Donna
What actually matters in this document.
Text
. wo > etn i Mbiag. hal ae) a] t WS.
SQL ABR —_| Mice Sutera Fou 0
4 n OF & @). | oe
i
eerie pe | Fea g 198!
)
}
H
In the Supreme Court of the United States
October Term, 1980
FRANK J. PROCHASKA,
Petitioner,
VS.
FRANCIS H. MARCOUX,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOSEPH P. JENKINS
(Counsel of Record)
302 E. Elkhorn Avenue
P. O. Box 1990
Estes Park, Colorado 80517
(303) 586-2496
Counsel for Petitioner
E. L. MznpgenwALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030
= ss
QUESTIONS PRESENTED FOR REVIEW
1. Is the de minimis doctrine applicable to cases in-
volving violation of constitutional rights?
2. What standards are to be applied in awarding at-
torney fees to a successful defendant under the Civil Rights
Attorney’s Fees Awards Act of 1976? Title 42, United
States Code, § 1988.
3. Is the random stop prohibition defined in Dela-
ware v. Prouse, 440 U.S. 648 (1979) equally applicable to
a motor boat, and if so, did the trial court err in granting
Respondent’s motion for summary judgment under the
facts presented by this case?
4. Is the denial of oral argument on appeal to one
party a denial of due process?
Ill
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW. .................... I
REIT MEIN seis nsthasssarssssnnoersaniesssrtepnccioenionins contuceetieunsenese 1
I ar cca cscs Gnas snigeaeabiasoinnieneomnnccen ins 2
TIE EE oe vnewecsccnsousicocneasenvesnessonsauasrnacnsones 2
yy oe Sg he gly. A Oe 5) nr 3
ARGUMENT—
A. The Lower Court Is Erroneously Applying the
De Minimis Doctrine in Civil Rights Cases .... 5
B. Awards for Attorney Fees Should Be Rarely
Made to Successful Defendants in Civil Rights
Actions, Should Be Based on Bad Faith, and
Be Left to the Discretion of District Courts... 7
C. Random Stop Prohibition Relating to Auto-
mobiles As Defined in Delaware v. Prouse,
440 U.S. 648 (1979) Applies Equally to Motor
Boonie ama Olner Veamels ....-.-.0-.:0.-100snecscenecessccrense 17
D. The Denial of Oral Argument on Appeal to
One Party Is a Denial of Due Process ................ 20
I geek Anais ge. ehnese vdieo nemsadaiarnsenndagusesonan 23
APPENDICES—
A. Order of District Court Granting Respon-
dent’s Motion for Summary Judgment ............ Al
B. Order of District Court Denying an Award of
Attorney Fees to Respondent ...................2.....--. A5
C. Opinion of Court of Appeals .........000.00... A6
D. Order Denying Petition for Rehearing and
Suggestion for Hearing en Banc ........................ A21
E. Rule 10(e), Rules of the Court of Appeals for
I I 0 sia dcacitclcaichedeintana tut euiidenpavandnsdinniies A22
a IIE = ica ins csdiepichaasssc soci eichanabalioniiebiesiiosavnalebennieinoonn A23
PREVIOUS PAGE WAS BLANK
IV
Table of Authorities
CASES
Allred v. Svarczkopf, 573 F.2d 1146 (10th Cir. 1978) .... 5
Alyeska Pipeline Service Co. v. Wilderness Society, 421
Se CBT sisinrea ciccnanieccecns enceniontens ngeiieincnenion 9,11
Atkins v. Lanning, 556 F.2d 485 (10th Cir 1977) ........ 5-6
Bowers v. Kraft Food Co., 606 F.2d 816 (8th Cir.
BPW 0 NGssnctvantadan Jechivesvicoestnbpestbensnasemtesapiacon sh erabeiesetcca eects 12
Brown v. Texas, 443 U.S. 47 (1979) .....0000... 18, 20, 22, 23
Carrion v. Yeshiva University, 535 F.2d 722 (2nd Cir.) 11
Christianburg Garment Co. v. Equal Employment Op-
portunity Commission, 434 U.S. 412 (1978) ............ 13, 15
Communications Comm’n v. WJR, 337 U.S. 265 (1948) 21
Delaware v. Prouse, 440 U.S. 648 (1979) .............. d, 17, 18, 20,
22, 23
Draeger v. Grand Central, Inc., 504 F.2d 142 (10th
TAMA) ERs @ ae ON: Rene BUONO RN or SSS MESSE re DREN 6
Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971) ........ 6
George W. Bennett Bryson & Co., Ltd. v. Norton Lilly
& Co., Inc., 502 F.2d 1045, 1050 (5th Cir. 1974) ........ 20
Giordano v. Lee, 434 F.2d 1277 (8th Cir. 1970) cert.
a Ae ee ER ED acecesrtssncsccshicceessstercspexestcesssuiens 7
Goff v. Texas Instruments, Inc., 429 F.Supp. 1973 (D.C.
SNE IUD i cssiits anata consis wwacitis creands iooansrasaacemmbenecumiepacatessoens 17
Green v. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978) ences 14
Hoyt v. Rockford, 592 F.2d 381 (7th Cir. 1979) .....000000..... 7
Hughes v. Rowe, ........ Oe SS , 66 L.Ed.2d 163 (de-
me Mc cs gat CORD | |) Raa See ee ee 7
Isaacs v. Temple University, 467 F.Supp. 67 (E.D.
P=. MOPS sas tiasnccuastisapstomeienteaiersencooditnnl dae coal ecsciens 9
Joseph v. Rowlen, 482 F.2d 365 (7th Cir. 1968) ............ 7
Koon v. Metts, 472 F.Supp. 897 (D.C. Car. 1978) ........ 12, 16
V
Monroe v. Pane, 365 U.S. 167 (19G1). ...0..2.22.--.cccceccncccesee 6
Patzkowski v. United States, 576 F.2d 134 (8th Cir.
I cece Anal do tvnccaepetice caaeecnte oss ces ani ong cimced niyo talowoc aan eae 12
Pierson ©. Ray, TOG US. GET CAGGT) nvccsccccccccscasececeonnnasnse 6-7
Pritchard v. Perry, 508 F.2d 423 (4th Cir. 1975) ............ 6,8
Ryals v. Azalea City Racing Club, Inc., 443 F.Supp. 146
ce Oe go Ue eh Ot Ree OE ne ee 15
Torres v. Puerto Rico, 442 U.S. 465 (1979) .................... 18-19
United States v. Piner, 608 F.2d 358 (9th Cir. 1979)
Sais dic seces eked ese sada sedsdinseign osebcadivanibca dese pianhabeatiaadsos saveieien 19, 20, 22, 23
WEEE @. Ward, STO FAG LICR (UGTA) occccsereesscccessnecsansseeses )
STATUTES AND RULES
Title 11, United States Code, § 2101(c) ©... 2
Civil Rights Attorneys Fee Award Act of 1976, Title 42,
United States Code, § 1988 ..........0000... 2, 8, 9, 13, 14, 23
Civil Action for Deprivation of Rights, Title 42, United
BOR 0b IO snes cnsetnnsncetiratecticasenssaceinvickcansevccinered passim
CONGRESSIONAL ACTION
Senate Report 94-1011, U. S. Code Cong. and Admin.
ye I ax sucsrkesicentscsciedantndcncomaneseavininatie 10, 13, 16
Congressional Record, Vol. 122 at 31471, 31472, 31475 11
CONSTITUTIONAL PROVISIONS
United States Constitution—
I sa oda aaummctmaniapamaseetansicees 4
I ii icevinseetanciniccecesccainnvnaen Ce ae leer 8, 18, 19
NN ane 5 ticcasaneusssneelanaseuaoeinss 4,18
OTHER AUTHORITY
Felix Frankfurter, Of Law and Men (Stanley M. Silver-
I I © II oi concsarancnaeticescncnn ceeds oticmetnicitaoedsdasiivneesnse 22
October Term, 1980
FRANK J. PROCHASKA,
Petitioner,
VS.
FRANCIS H. MARCOUX,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
The Petitioner, Frank J. Prochaska (‘‘Prochaska”), re-
spectfully prays that a writ of certiorari issue to review the
judgment and opinion of the United States Court of Ap-
peals for the Tenth Circuit entered in this proceeding on
September 9, 1980.
OPINION BELOW
The opinion of the United States Court of Appeals for
the Tenth Circuit is reported in 632 F.2d 648 (10th Cir.
1980), and appears in Appendix C.
JURISDICTION
The judgment sought to be reviewed was entered by
the United States Court of Appeals for the Tenth Circuit
on September 9, 1980. A timely Petition for a Rehearing
and Suggestion for Hearing en Banc were denied on No-
vember 10, 1980. Appendix D. The jurisdiction of the
Court is invoked pursuant to Title 11, United States Code,
§ 2101(c).
STATUTES
Title 28, United States Code, § 1983:
Civil action for deprivation of rights
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any cit-
izen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an ac-
tion at law, suit in equity, or other proper proceeding
for redress.
Civil Rights Attorneys Fee Award Act of 1976, Title 42,
United States Code, § 1988:
Proceedings in vindication of civil rights * * *
In any action or proceeding to enforce a provision of
sections 1977, 1978, 1979, 1980, and 1981 of the Revised
Statutes [42 USCS §§ 1981-1982, 1985, 1986], title IX
of Public Law 92-318 [20 USCS §§ 1681 et seq.], or in
any civil action or proceeding, by or on behalf of the
United States of America, to enforce, or charging a
violation of, a provision of the United States Internal
3
Revenue Code [26 USCS §§ 1 et seq.], or title VI of
the Civil Rights Act of 1964 [42 USCS §§ 2000d et
seq.], the court, in its discretion, may allow the pre-
vailing party, other than the United States, a reason-
able attorney’s fee as part of the costs.
STATEMENT OF THE CASE
This action was filed July 3, 1978, seeking both com-
pensatory and exemplary damages for violation of Pro-
chaska’s civil rights under Title 28, United States Code,
§ 1983. Prochaska’s claim arose out of the action of Re-
spondent (‘‘Marcoux’’), a Wild Life Conservation officer
of the Colorado Division of Wild Life. Prochaska alleged
that on June 28, 1976, he was lawfully operating his motor
boat while fishing on Lake Estes in Estes Park, Colorado.
It was the only boat on the lake. Marcoux, while engaged
in the performance of his duties, randomly intercepted
Prochaska by use of another boat, drew both boats together,
directed Prochaska to draw in his fishing line, started
peering into the boat looking for various items required by
law to be part of a motor boat’s equipment, such as fire
extinguishers, a sounding device, paddle, and life jacket,
and interrogated him with respect thereto. Not finding a
fire extinguisher, Marcoux directed Prochaska to the dock
and proceeded to write a citation charging Prochaska with
operating a vessel without proper equipment. Prochaska
was asked to sign a citation, but he refused because of the
generality of the charge. Whereupon, he was placed under
arrest, and advised he would have to accompany Marcoux
to the police station. Prochaska then signed the citation,
and was permitted to leave.
On July 2, 1976, Prochaska appeared in the local
county court and was handed another citation by Marcoux
charging Prochaska with operating a vessel without a
4
proper and valid registration. However, Marcoux was
caught by surprise when Prochaska produced a temporary
permit which was effective on the date Prochaska was
arrested. Marcoux was forced to withdraw the charge.
Subsequently, Prochaska was found guilty of the first
charge.
Prochaska alleged and testified by deposition that Mar-
coux acted with malice and without probable cause; that
his activities were conducted in an abusive and arrogant
manner with the intent of harassing, humiliating, and de-
grading Prochaska, and that he had been deprived of his
right to be secure in his person against unreasonable search
and seizure under the First and Fourteenth Amendments
to the Constitution of the United States.
Marcoux admitted that the boat was the only vessel on
the lake, and was positioned approximately 300 yards away
from him, but claimed that by using his binoculars he could
see the boat lacked a registration sticker. The sticker is
3 inches by 3 inches in size. However, at no time while
searching Prochaska’s boat did Marcoux mention the
sticker, look for it, or charge Prochaska that day for the
violation. He later claimed that he had called his depart-
ment and was told by some unknown person that there
was no record of a Prochaska registration. He did not
contact Prochaska prior to issuing the second citation al-
- though Prochaska lived in the community. Marcoux tes-
tified in his deposition that under departmental rules he
may make a boat contact at any time, and there need not
be any reason for the contact. According to Marcoux,
whenever he saw a boat, he could go out and search it with-
out probable cause. On the basis of the depositions of Pro-
chaska and Marcoux, the trial court granted summary
judgment and denied Marcoux’s motion for attorney fees
finding specifically that Prochaska’s action was not friv-
olous, unreasonable, or without foundation. Appendix B.
)
The Court of Appeals for the Tenth Circuit affirmed,
but reversed the trial judge on the cross-appeal of Marcoux
relating to the denial of attorney fees. One judge dissented
(Judge Doyle), pointing out that while the case was not
one of great moment, it was not the weakest case to ever
come before him, and that the matter of attorney fees
was properly for the trial court to determine. He deplored
the appellate court “refinding” the facts, and stated that
the award was out of line with the decisions of the Tenth
Circuit. Marcoux has filed a claim for $2,587.45 plus
court costs. The Court of Appeals has recalled its mandate
and stayed all further proceedings pending final disposition
by the Supreme Court.
ARGUMENT
A. The Lower Court Is Erroneously Applying the
De Minimis Doctrine to Civil Rights Cases.
The Tenth Circuit appears to be alone in its in-
tractable position that an individual’s constitutional rights
can be weighed quantitatively, and if a violation occurs,
it may not be grounds for an action if it falls short of some
undefined standard of circumstances. In Wells v. Ward,
470 F.2d 1185 (1972), where the plaintiff freely chose
custody rather than sign a ticket, the court adopted its
position that Congress, in enacting § 1983, had in mind
the “aggravated lawless conduct which then obtained.”
Id. at 1188. While the Court of Appeals recognizes that
the present Act contemplates a broader range of invasions,
it still must constitute a deprivation of a right guaranteed
by the Constitution. Thus, the court equates an invasion
of § 1983 rights with aggravated conduct. E.g. Allred v.
Svarczkopf, 573 F.2d 1146 (10th Cir. 1978); Atkins v. Lan-
1. The trial court’s order granting summary judgment was
entered on February 21, 1979. Delaware v. Prouse, supra, was
decided on March 27, 1979.
6
ning, 556 F.2d 485 (10th Cir. 1977); Freeman v. Flake,
448 F.2d 258 (10th Cir. 1971). In Draeger v. Grand
Central, Inc., 504 F.2d 142 (10th Cir. 1974), the court dis-
played its adherence to what may be referred to as the
de minimis doctrine by finding a § 1983 violation when the
facts established a false arrest, search, confinement, and
a “roughing up” of the plaintiff.
The Tenth Circuit view is not shared by other circuits
and should be struck down for the reason that the whole
fabric of civil rights litigation is now in jeopardy. By
finding this action “frivolous, unreasonable, or groundless”,
the court is merely voicing its continued adherence to the
de minimis rule which in turn would lead to more awards
of attorney fees to defendants, and would have a chilling
effect on potential plaintiffs with complaints bottomed on
§ 1983 invasions. Furthermore, as will be briefly alluded
to later, the court ignored factual issues which should
have resulted in a denial of Marcoux’s motion for sum-
mary judgment. Even then, Prochaska would be faced
with the potential loss of his case because it may not be
serious enough to avoid the thrust of de minimis.
Other courts have refused to classify invasions of con-
stitutional rights as actionable or not actionable depending
on the seriousness of the violation. In Pritchard v. Perry,
508 F.2d 423 (4th Cir. 1975), the court rejected the de
minimis rule pointing out that there is no warrant for
any separation of constitutional rights into redressable
rights or non-redressable rights, or of major or minor con-
stitutional deprivations.” E.g. Pierson v. Ray, 386 U.S. 547
2. The court quoted the following from Monroe v. Pape, 365
U.S. 167, 180 (1961) which in turn quoted from Congressional
debates: ‘The deprivation may be of the slightest conceivable
character, the damages in the estimation of any sensible man
may not be five dollars or even five cents; there may be what
lawyers call merely nominal damages; and yet by this section
jurisdiction of that civil action is given to the Federal courts
instead of its being prosecuted as now in the courts of the States.”
7
(1967) (warrantless arrest without probable cause); Joseph
v. Rowlen, 482 F.2d 365, 369 (7th Cir. 1968) (officer’s con-
duct may not be flagrant or malevolent); Hoyt v. Rockford,
592 F.2d 381 (7th Cir. 1979) (no violence necessary) ;
Giordano v. Lee, 434 F.2d 1277 (8th Cir. 1970) cert. den.,
403 U.S. 931 (1971).
It appears clear that the court’s philosophy in this
case is permeated with the de minimis doctrine. There-
fore, this Court should define whether or not the rule is
appropriate within the context of civil rights cases be-
fore it catches on in other circuits deluged with civil
rights actions. Undoubtedly, if this case receives judicial
gloss, there will be a serious temptation on the part of
many courts to adopt the rule in order to clear their
dockets. This would not be consistent with the intent of
Congress, or with the prevailing view, and will result in
an increase of awards against unsuccessful plaintiffs.
B. Awards for Attorney Fees Should Be Rarely
Made to Successful Defendants in Civil Rights Actions,
Should Be Based on Bad Faith, and Left to the Dis-
cretion of the District Courts.
Decisions to grant or deny such awards should be left
to the discretion of the district courts.
The question of attorney fees was only mentioned in
passing in Prochaska’s reply brief, because it seemed clear
that the trial court’s denial, while-exercising his discretion,
was final.
In the recent case of Hughes v. Rowe, ........ if Ue
66 L.Ed.2d 163 (decided November 10, 1980), the Court
said:
The decision whether to award attorney fees under
42 USC § 1988 * * * is committed to the discretion of
the district courts, who are intimately familiar with the
course of the litigation. Id. 178.
8
While Marcoux vigorously argued the de minimis rule
in his brief, he did not say one word about the denial of
attorney fees, nor did he make any complaint.
The trial court specifically found that this action was
not frivolous, unreasonable, or without foundation. Ap-
pendix B. However, the majority of the lower court,
working only from two depositions, the briefs of the
parties, and statements of the trial court, and without hear-
ing Prochaska’s counsel during oral argument,” held that
the action was “clearly frivolous, unreasonable, or ground-
less.” Indeed, not only did the majority of the court over-
turn what appears to be a discretionary matter lying
within the district court’s grant of power by the Congress,
but second-guessed it on the question of whether the case
was so frivolous, unreasonable, or groundless, so as to war-
rant an award of attorney fees to a defendant under the
Civil Rights Attorney’s Fee Award Act of 1976.
While Prochaska disagrees with Judge Doyle's state-
ment in dissent that the case was “much ado about noth-
ing”, since it is urged that violations of constitutional
rights are not measurable quantitatively,‘ his concern that
the question of attorney fees was for the trial court to
determine appears sound. Judge Doyle also said: “If the
case is to be considered frivolous based on the length of
the chancellor’s foot, so to speak, the results are going to
be unfortunate.”
3. See infra.
4. Pritchard v. Perry, supra. The trial judge appears to
agree with this statement when he said: “Now, I want to em-
phasize that by my saying I am not following the trivial or in-
consequential line of cases, that by holding that I do not criticize
the Tenth Circuit in what it holds in that case.
“I am not holding my decision to grant summary judgment
on that basis, because I don’t know hew one measures the sig-
nificance of the Fourth Amendment violation. I can't.”
9
The possibility of a court re-evaluating the merits of
their case as they viewed it at its inception, but after all
the evidence is in, and then holding that the case should
not have been brought in the first place, would discourage
all but the strong-hearted. In this regard, the following
observation from Isaacs v. Temple University, 467 F.Supp.
67 (E.D. Penn, 1979), is particularly apropos:
The right of freedom of speech is not to be so chilled
by official action. The doors to federal courthouses
mus! be made open to all who have justiciable federal
causes of action. They must remain open not only
to the rich and the poor, but also to multitudes in
between who do not qualify for publicly supported
legal aid, and who can afford the ever-increasing cost
of legal services only by great personal sacrifice. To
impose upon plaintiffs the customarily not-immodest
claims of their opponents for counsel fees as a penalty
for failing to convince the fact finder by a preponder-
ance of the evidence, would, in my estimation, effec-
tively barricade the courthouse doors to all middle-
income civil rights plaintiffs except those with the
most reckless gambling natures. (467 F.Supp. at 70.)
The history of the 1976 Act bolsters the reasoning in
Isaacs. After the Supreme Court denied attorney fees to
the prevailing plaintiffs in Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U.S. 240 (1975), a movement
began in Congress to blunt the impact of this decision.
Hearings on legal fees eventually culminated in an amend-
ment to 42 U.S.C. § 1988, which allowed an award of
attorney fees to prevailing parties. However, it is evident
from the legislative history of the Act that Congress was
mostly concerned with prevailing plaintiffs, and that only
in extreme cases should an award be given to a winning
defendant. In other words, the “private attorneys general”
10
doctrine was their main concern. The following from Sen-
ate Report 94-1011 appears appropriate here:
The purpose and effect of S. 2278 are simple—it is
designed to allow courts to provide the familiar remedy
of reasonable counsel fees to prevailing parties in suits
to enforce the civil rights acts which Congress has
passed since 1866. * * * All of these civil rights laws
depend heavily upon private enforcement, and fee
awards have proved an essential remedy if private
citizens are to have a meaningful opportunity to vindi-
cate the important Congressional policies which these
laws contain.
In many cases arising out of our civil rights laws, the
citizen, who must sue to enforce the law has little or
no money with which to hire a lawyer. If private
citizens are to be able to assert their civil rights, and
those who violate the Nation’s fundamental laws
are not to proceed with impunity, then citizens must
have the opportunity to recover what it costs them
to vindicate these rights in court. (1976, U. S. Code
Cong. and Admin. News, pp. 5909, 5910.)
At page 5912, the report mentions the criterion for
awarding attorney fees to a successful defendant as follows:
Such a party, if unsuccessful, could be assessed his
opponent’s fee only where it is shown that the suit
was clearly frivolous, vexatious, or brought for harass-
ment purposes. * * * This bill thus deters frivolous
suits by authorizing an award of attorney’s fees against
a party shown to have litigated in “bad faith” under
the guise of attempting to enforce the Federal rights
created by the statutes listed in S, 2278. (Emphasis
supplied. )
11
It appears all too clear that Congress was more con-
cerned with the private attorneys general than with the
defendants. Attorney fees are to be awarded prevailing
plaintiffs unless special circumstances militate against such
an award, but as to defendants, much more stringent cir-
cumstances must be present.
The senate debates were also geared toward the pre-
vailing plaintiff. Senator Hugh Scott said: “I believe it
(S. 2278) ranks among the important measures we will
act upon this year. Simply stated, S. 2278 is designed
principally to award attorney fees to prevailing plaintiffs
in civil rights cases.” (Cong. Rec. Vol. 122, September 21,
1976, at p. 31471.) On that same day Senator Mathias
observed in debate: ‘Mr. President, I believe that it is
incumbent upon Congress to do its part to insure the
proper enforcement of our civil rights laws. By providing
for reasonable counsel fees to prevailing parties in civil
rights cases, the Congress can take a great step in the
direction of minimizing the formidable barrier erected
by the Court’s decision.” Alyeska Pipeline Service Co.
v. Wilderness Society, supra. Id. at 31471.
On that same day Senator Kennedy argued: ‘Fee
shifting provides a mechanism which can give full effect
to our civil rights laws at no added cost to the government.
Id. at 31472.
In passing, and apropos the ‘‘much ado about nothing”
statement of Judge Doyle, Senator Allen pointed out in
offering the bill that ‘there are no minor civil rights.”
Id. at 31475.
Fees have rarely been awarded prevailing defendants,
but when they have, the courts have been cautious. In
Carrion v. Yeshiva University, 535 F.2d 722 (2nd Cir.),
the court upheld a fee award to a successful defendant,
12
but stated that such awards should not be made routinely,
or simply because defendant succeeds, but only when the
action brought is found to be unreasonable, frivolous,
meritless, or vexatious. Cf. Bowers v. Kraft Food Co.,
606 F.2d 816 (8th Cir. 1979), a race discrimination case.
An award of attorney fees to the defendant was reversed
upon the holding that although the evidence was weak,
it was sufficient to “conceivably” have influenced plain-
tiff to believe she had a stronger case. In the case at
bar, counsel would certainly have argued to the court
that Prochaska would not have pursued this matter as
far as he did, and is still pursuing it, if he did not feel
he had a strong case, and that he had been maltreated
by Marcoux.
Rare examples of awarding fees to a defendant are
Koon v. Metts, 472 F.Supp. 897 (D.C. Car. 1978) and
Patzkowski v. United States, 576 F.2d 134 (8th Cir. 1978).
These were extreme cases. In Koon, a civil rights action
was brought by a preacher and a member of the South
Carolina legislature against, among others, the county
sheriff, because the plaintiff, while emptying trash at one
of the litter stations in the county, was apprehended by
a deputy sheriff for depositing the wrong kind of trash.
The evidence showed that the matter was strictly one of
political expediency, and under such circumstances, the
prevailing defendants were awarded attorney fees. The
court found that the case was brought for vexatious or
harassment purposes. It is noted that this award was made
by the district court which, we submit, is the only court
that has been granted this power by the Congress. Its dis-
cretion should be final unless grossly abused. The evidence
in the case at bar did not sustain such a finding.
In Patzkowski, a suit was brought by a taxpayer for
the refund of employment taxes. The government coun-
13
terclaimed for the balance of the assessment and filed a
third party complaint seeking to collect the same penalty
assessed. The taxpayer prevailed on the counterclaim, but
was denied attorney fees. He had sought such fees under
the Civil Rights Attorney’s Fees Awards Act of 1976,
supra. The Court of Appeals reversed for the reason that
the district court had applied the wrong test: that of
bad faith.’ The appellate court held that attorney fees
may be allowed in this case when there was a showing that
the government’s action was frivolous, harassing, vex-
atious, unreasonable, without foundation or was instituted
in bad faith. The district court erred in limiting the test
to bad faith only. This is the only published case we have
found where a court of appeals reversed a district court on
the question of awarding attorney fees to a prevailing de-
fendant, and it was done so on the narrow ground that the
court applied the wrong test.
The lower court refers to Christianburg Garment Co.
v. Equal Employment Opportunity Commission, 434 U.S.
412 (1978), for the proposition that a district court (em-
phasis supplied) may, in its discretion, award attorney fees
to a prevailing defendant in a Title VII case upon a find-
ing that the plaintiff’s action was “frivolous, unreasonable,
or without foundation.” Christianburg does not answer
the question we pose: Why does the court reverse here
when the district court has already exercised that dis-
cretion against the granting of an award for attorney fees
to the prevailing defendant? However, more was said in
Christianburg:
In applying these criteria, it is important that a dis-
trict court resist the understandable temptation to
engage in post hoc reasoviu" g by concluding that, be-
5. But see Senate Report 94-1011, p. 5912, supra, where
the element of ‘‘bad faith” is emphasized.
14
cause a plaintiff did not ultimately prevail, his action
must have been unreasonable or without foundation.
This kind of hindsight logic could discourage all but
the most airtight claims, for seldom can a prospective
plaintiff be sure of ultimate success. No matter how
honest one’s belief that he has been the victim of
discrimination, no matter how meritorious one’s claim
may appear at the outset, the course of litigation is
rarely predictable. Decisive facts may not emerge
until discovery or trial. The law may change or
clarify in the midst of litigation. Even when the
law or the facts appears questionable or unfavorable
at the outset, a party may have an entirely reasonable
ground for bringing suit. Id. 421, 422.
We have found no other published opinion wherein a
court of appeals reversed a district court’s finding that a
prevailing defendant was not entitled to attorney fees be-
cause plaintiff’s action was. in the opinion of the district
court, not unreasonably brought, not frivolous, not without
foundation, or not unreasonable.” The lower court is char-
tering a new course which not only erodes the discretionary
and fact-finding powers of a district court, but gives itself
powers in an area not contemplated by Congress when the
Civil Rights Attorney’s Fee Awards Act was enacted.
To emphasize what some courts are doing, we point to
Green v. Ten Eyck, 572 F.2d 1233 (8th Cir. 1978), where
the contention was made that the same standards should
apply in awarding attorney fees to a plaintiff or a defen-
dant. The court awarded attorney fees to the plaintiff who
prevailed on appeal, but made no effort to define a stan-
6. However, the Tenth Circuit in Morgan v. Brittany, No.
79-1230 (unpublished), reversed a denial of an award to a de-
fendant because the district court ‘made no effort to determine
whether the lawsuit was frivolous, unreasonable or without foun-
dation.”
15
dard on remand for further proceedings. E.g. Ryals v.
Azalea City Racing Club, Inc., 443 F.Supp. 146 (D.C. Ala.
1977), where the court awarded attorney fees to a plaintiff,
but did not delineate what standards it was applying.
Finally, in Hughes v. Rowe, ........ USS. ........ , supra, an
award of attorney fees against an unsuccessful prisoner-
plaintiff was vacated on the authority of Christianburg
Garment Co. v. Equal Employment Opportunity Commis-
sion, supra, which laid down the rule that the defendant
in an action brought under Title VII of the Civil Rights
Act of 1964, may recover from the plaintiff only if the
district court finds “that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not
brought in subjective bad faith.” Id. at 421. Although
recognizing that a different standard might be applied in
a § 1983 action, the Court could perceive no reason for
applying less stringent standards. It was pointed out that
the plaintiff's action must be meritless in the sense that
it is groundless or without foundation. The fact that
a plaintiff may ultimately lose his case is not in itself a
sufficient justification for the assessment of fees. The
court then quoted from Christianburg:
To take the further step of assessing attorney fees
against plaintiffs simply because they do not finally
prevail would substantially add to the risks inhering
in most litigation and would undercut the efforts of
Congress to promote the vigorous enforcement of the
provisions of Title VII. Hence, a plaintiff should not
be assessed his opponent’s attorney’s fees unless a
court finds that his claim was frivolous, unreasonable,
or groundless, or that the plaintiff continued to litigate
after it clearly became so. Id. at 422.
Is this the standard to be applied in all future § 1983
cases? If so, it is submitted that the standard is not as
16
stringent as intended by Congress. The question of
whether an action is brought in bad faith should be the
controlling criterion. Senate Report 94-1101, supra, at page
5912, makes this clear when it states:
Such a party, if unsuccessful, could be assessed his
opponent's fee only where it is shown that his suit
was clearly frivolous, vexatious, or brought for harass-
ment purposes. * * * This bill thus deters frivolous
suits by authorizing an award of attorneys’ fees
against a party shown to have litigated in “bad faith”
under the guise of attempting to enforce the Federal
rights created by the statutes listed in S. 2278. (Em-
phasis supplied. )
It is suggested that in spite of the various characteriza-
tions used, the ultimate result intended by Congress was
the standard of “bad faith”’.
There would be a far less chilling effect on potential
§ 1983 plaintiffs if they were aware that attorney fees
would be awarded against them only if it was established
that an action was brought in bad faith. Koon v. Metz.
supra. An act being labeled “frivolous” appears to echo
the de minimis rule, and should be discarded as quantita-
tively measuring invasions of constitutional rights, which
should be impermissible. Being “without foundation” i:
often a judgment call by counsel, and would most cer-
tainly have a chilling effect on bringing a close case in
the first place. “Unreasonable” falls in the same category.
“Harassment” as used in the Senate Report can be applied
to many types of cases. If a plaintiff has suffered an
invasion of his civil rights, he may choose not to file an
action at all because it may be a petty invasion, or if he
does sue, he may choose one of several potential defen-
dants. One can label this action harassment. It is sub-
mitted that the bad faith standard be adopted as more
17
clearly reflecting the intent of Congress, proof thereof
being made by reference to the surrounding circumstances.
Any trial attorney will attest that what appears to have
been a good case can, by the reluctance of witnesses to
testify, by the death or disappearance of witnesses or
documentation, by friendly witnesses suddenly turning
hostile, and by any number of factors, literally fall apart,
and what was once at least a decent case, if not a strong
one, will appear to have been brought vexatiously, with-
out foundation, or .or the purpose of harassment.
Therefore, it is urged that the Court adopt a clear
standard for the award of attorney fees to a successful
defendant based on the concept of bad faith. Only then
can the weak-hearted gather the courage to vindicate a
§ 1983 wrong.’
C, Random Stop Prohibition Relating to Auto-
mobiles As Defined in Delaware v. Prouse, 440 U.S.
648 (1979), Applies Equally «6 Motor Boats and Other
Vessels.
In Prouse, a patrolman stopped the automobile occupied
by the respondent in that case, and smelled marijuana
smoke as he was approaching the vehicle. He saw mari-
juana in plain view on the car floor. ‘The respondent was
subsequently indicted for illegal possession of a controlled
substance. A motion to suppress wus filed and granted.
The Delaware Supreme Court affirm2d, and upon certio-
rari, this Court also affirmed.
7. This would avoid decisions such as Goff v. Texas Instru-
ments, Inc., 429 F.Supp. 1973 (D.C. Texas 1977), where the court,
in awarding attorney fees to a successful defendant, was of the
opinion that the prevailing defendant should recover under less
egregious circumstances than the traditional bad faith or harass-
ment required by the common law. The standard to be applied
to defendants’ recovery should be more liberal than bad faith.
18
The Court held that unless there is at least articulable
and reasonable suspicion that a motorist is unlicensed, or
that an automobile is unregistered, or that either the ve-
hicle or the occupant is otherwise subject to seizure for
violation of law, stopping an automobile and detaining the
driver in order to check his driver’s license and the registra-
tion of the automobile is unreasonable under the Fourth
Amendment. Such stopping of an automobile and detain-
ing its occupants constitutes a seizure within the Fourth
and Fourteenth Amendments even though the purpose of
the stop is limited, and the resulting detention is quite brief.
No material differences are perceived between the
random stopping of an automobile travelling along the
public highway and a motor boat being operated on a
public lake. All the safeguards afforded by Prouse, and
the reasons therefor, are clearly applicable to Prochaska.
When he stepped into his motor boat, moved out into
the lake, and started trolling, he had as much right to
an expectation of privacy, and protection from the un-
bridled discretion of government officials, as did the driver
of the automobile in Prouse.
Marcoux freely admitted that the Colorado Division
of Wild Life had no standards, guidelines, or procedures
pertaining to document and equipment spot checks. He
pointed out that he always conducted such random checks
for fishing licenses and registration stickers, and while
doing so, investigated by questioning whether the boats
were equipped as required by law. It appears beyond
argument that the stopping of the boat, drawing the boats
together, the interrogation of Prochaska, and peering into
the boat for equipment, and which resulted in a warrant-
less arrest, brings this case within the reach of Prouse.
See also Brown v. Texas, 443 U.S. 47 (1979) (random
stopping of pedestrian), and Torres v. Puerto Rico, 442
19
U.S. 465 (1979) (random searching of airline passengers’
baggage).
Closely analogous to the case at bar is United States
v. Piner, 608 F.2d 358 (9th Cir. 1979), where the court
held that a random stop and boarding of a vessel by the
Coast Guard after dark for safety and registration inspec-
tion without cause to suspect non-compliance was not
justified by governmental need to enforce compliance with
safety regulations and constituted a violation of the Fourth
Amendment. The court rejected the government’s argu-
ment that random stops are the only practical means of
ascertaining whether pleasure craft complied with safety
regulations.
In the case at bar, Marcoux claimed he could see
that the boat did not have a 1976 registration sticker.
He claimed he went out on the lake for the express
purpose of checking Prochaska’s registration. However,
after contact was made, nothing was said about the regis-
tration, and the boat was searched for items required by
safety regulations. The question of a registration sticker
was not brought up until Prochaska was arrested when
he appeared in court to answer other charges. The analogy
between the case at bar and Piner is beyond argument.
Insofar as Marcoux claiming that he stopped the boat
because he could not see a registration sticker at such a
great distance, and having completely forgotten about it,
searched the boat instead, is a credibility question for
the jury to decide. Credibility is also raised in connection
with Marcoux’s claim that he had called his office and
ascertained that Prochaska had no registration sticker.
The officer’s good faith, his real purpose for intercepting
Prochaska, whether he had actually checked out the ex-
istence of a sticker, whether an argument on the dock
resulted in the malicious filing of a second clearly un-
20
substantiated charge, were questions of fact for the jury.
The circuit court appears to complain about the failure
of Prochaska to file affidavits and a brief in the trial
court: Neither party filed a brief. Counsel are at a
complete loss as to how this would have affected the
common-sense approach that credibility and good faita
cannot be determined by affidavits and the filing of briefs
under the circumstances of this case. All Prochaska
would be swearing to would be that Marcoux could not
tell whether or not he had a sticker on the boat, that
he doubted that Marcoux had checked with his depart-
ment, that the second charge was the result of malice,
etc. These are matters to be developed at the trial. There
is nothing that could be added by an affidavit. Even
the trial court agreed on this point by not asking for
briefs, and hearing oral argument. Therefore, it appears
clear that this case was not to be decided on the sum-
mary judgment motion, but should have been presented
to the jury whose function is to judge the credibility
of witnesses by their demeanor on the witness stand, and
in the light of all the surrounding circumstances.
We submit that Prouse, Brown, and Piner are clear
and dispositive of Prochaska’s right to bring this § 1983
case.
D. The Denial of Oral Argument on Appeal to
One Party Is a Denial of Due Process.
It is conceded that the right to present oral argument
on an appeal such as this is not always a violation of
due process. In order to expedite their dockets, courts
of appeal have promulgated rules targeted at dispensing
with argument in certain classes of cases. (See Rules of
Court, Court of Appeals for the Tenth Circuit, Appendix
E.) George W. Bennett Bryson & Co., Ltd. v. Norton
Lilly & Co., Inc., 502 F.2d 1045, 1050 (5th Cir. 1974).
21
In Communications Comm’n v. WJR, 337 U.S. 265 at
275 (1948), the Court said:
On the contrary, due process of law has never been
a term of fixed and invariable content. This is as
true with reference to oral argument as with respect
to other elements of procedural due process. For this
Court has held in some situations that such argument
is essential to a fair hearing. Londoner v. Denver,
210 U.S. 373, and others that argument submitted in
writing is sufficient. Morgan v. United States, 298
U.S. 468, 481.
However, no case or rule has been found where, as
here, one party is permitted to make a unilateral argument
when opposing counsel was unable to attend because of
a dire emergency, and had so advised the court. The
facts are these: Undersigned counsel was called to Chi-
cago, Illinois, because of the sudden death of his mother,
and was unable to return in time for the oral argument
set for July 8, 1980. On July 7, 1980, a continuance on
the oral argument was requested by telephone by reason
of an exceptional emergency. (See attached affidavit,
Appendix F.) However, the court proceeded with the
argument, and in its opinion designated undersigned coun-
sel as “being excused from oral argument”. Counsel had
never asked to be excused, had never requested that
argument be waived, and was of the reasonable opinion
that oral argument would be continued to a later date.
Instead, he received a copy of the slip opinion of the
court on September 10, 1980. It was extremely important,
particularly because of the attorney fees award, that coun-
sel be present to present his position, answer questions,
and perhaps add something to the court’s store of knowl-
edge relating to the subject. As it stands at the present
time, counsel has been unable to satisfactorily explain
22
to Prochaska why he was not present, and why the court
proceeded without him. Even a lay person understands
that argument on the part of one side only is extremely
disadvantageous to the absent party. This statement is
particularly appropriate here where Marcoux never took
the time to brief the question of an award of attorney
fees, apparently believing that the district judge’s order
was final. It was vital that Prochaska’s counsel be given
a chance to present oral argument because the issues are
extremely important in view of what appears to be new
precedent in the field of civil rights.
As the Court well knows, the importance of oral argu-
ment can never be overestimated. Justice Felix Frank-
furter once wrote:
He respected the traditions of the Supreme Court
as a tribunal not designed as a dozing audience for
the reading of soliloquies but as a questioning body,
utilizing oral arguments as a means for exposing the
difficulties of a case with a view of meeting them.
Of Law and Men (Stanley M. Silverberg) 321 (1956).
One can only speculate as to what may have hap-
pened if counsel would have been able to present his
position on de minimis, attorney fees, and analogize this
case with Prouse, Brown, and Piner. It is submitted
that under these circumstances, proceeding with unilateral
argument to the exclusion of counsel for one side con-
stituted a failure of due process.
23
CONCLUSION
It is submitted that the Court should exercise its
powers of supervision and summarily reverse the lower
courts on the authority of Prouse, Brown, and Piner.
The case should be submitted to a jury. However, clear
statements of policy are necessary in order that the Civil
Rights Attorney’s Fees Awards Act be uniformly and
fairly applied, and that the chilling effect of a decision
such as at bar should be avoided, and the stringent re-
quirement of bad faith be declared as the standard of
awards to prevailing defendants. Also, it should be the
rare case indeed that the denial of an award by a district
court in the exercise of its discretion should be reversed
on appeal.
Furthermore, the de minimis rule of the Tenth Cir-
cuit, Which conflicts with the rule in other circuits, should
be clearly and finally discarded and held inappropriate
in civil rights cases. Quantitative measurement of the
degree of seriousness of an invasion of individual civil
rights has no place in our system.
Lastly, the equating of due process and the right to
oral argument should be more clearly delineated by the
Court, particularly when one party is denied the right
to participate under the facts of this case.
It is respectfully requested that the Court issue the
writ.
Respectfully submitted,
JOSEPH P, JENKINS
Al
APPENDIX
APPENDIX A
Order of Court
THE COURT: All right, I’m going to grant summary
judgment.
My reasoning is that under the facts as I understand
them, and that’s based really on the two depositions to
which you made reference, the key to the case is whether
or not the Defendant, Mr. Marcoux, came out to the Plain-
tiff’s boat, operating on a lake, and subject to the require-
ments of Colorado law, for such an operation which in-
cluded the requirement of having a registration, and the
requirement of having adequate safety devices, which
include the fire extinguisher, and the sounding device,
whether, when Officer Marcoux came out to that boat
then being operated by Mr. Prochaska, there was any
requirement as a matter of law to have any probable
cause to intrude on the Plaintiff's liberties to the extent
that he did.
All that is shown here is that he comes alongside,
that he pulls Mr. Prochaska’s boat too, so that it’s joined
to that extent to the Defendant’s boat, and then he pro-
ceeds to ask Mr, Prochaska a number of questions which
include the question about the safety devices.
In my opinion there is no requirement for probable
cause for that stop, and I’m not going to wait for the
Supreme Court of the United States on that subject.
I draw a distinction between the 4th Amendment's
protection of places which are entitled to privacy, the
obvious being residences, places of business, and the like,
A2
where there is no basis for the officers intruding into
the zone of privacy.
But when you operate a boat on a lake, a motor
vehicle on a public highway, matters of that type, you
are in a public place, and you have an expectation whether
you rely on implied consent, or whether you simply rely
on a reasonable expectation, that you’re going to be
stopped, and asked questions by appropriate law enforce-
ment personnel. It’s there.
And I recognize that it hasn’t been articulated in these
specific terms by the Supreme Court of the United States
at this point, but I’m entitled to interpret the Constitution
as well as and as long as it is inconsistent with inter-
pretations that are binding upon me, and it’s my view
of the 4th Amendment protection that it doesn’t apply
to the limited intrusion in this case where he didn’t
even go on board the boat, that he simply stopped him
too, and said ‘“‘Where are these devices,” and the Plaintiff
admits that he didn’t have the devices. And therefore
clearly admits a violation of State law.
Now following that through then, the law is, as I
say, Marcoux didn’t have to have probable cause to make
the stop, stops within his lawful authority.
You follow through on that, it seems to me every-
thing else falls in terms of there being any constitutional
violation, because we knew of an admitted violation of
the law.
I think Marcoux had a right to arrest Prochaska right
there on the dock, if he didn’t sign the consent to appear.
Now we follow through the appearance, I guess it
was in the County Court, where the second charge was
filed and dismissed almost simultaneously.
A3
Well, here too, I think that the facts were that
Marcoux had probable cause at that point to believe that
the boat wasn’t validly registered, and there was a basis
for the charge.
Upon a showing that there was the temporary regis-
tration, he backed off, and I don’t think there was a
constitutional violation involved in that, beyond that.
I think the case would never get to a jury on qual-
ified immunity, because the testimony of Marcoux in his
deposition is that he went out there and stopped this
particular boat, because he didn’t see a registration.
But he also said in his deposition that his under-
standing of the law was he could go out there and stop
him, whether he had failed to observe a registration,
that both contacts were and still are being made routinely
by him, just to check on the registration, and on the
safety equipment.
And accordingly, it seems clear to me that he had
a belief that he had this right. And I can’t say that’s
an unreasonable belief, because that’s where I come down
on the law in the case, where he indeed had a right.
Now I want to emphasize that by my saying I’m not
following the trivial or inconsequential line of cases, that
by saying that I do not criticize the 10th Circuit and
what it holds in that case.
I’m not holaing my decision to grant summary judg-
ment on that basis, because I don’t know how one mea-
sures the significance of the 4th Amendment violation.
I can’t.
Here there is none in my judgment.
So upon these views, the Clerk will enter a judgment
dismissing the complaint in this civil action, and awarding
A4
to the Defendant his costs upon assigning of the bill of
costs within ten days.
Court is in recess.
(WHEREUPON, the proceedings were recessed at
11:45 o’clock a.m.)
February 21, 1979
AS
APPENDIX B
(Filed March 5, 1979)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 78 M 658
FRANK J. PROCHASKA,
Plaintiff,
V.
FRANCIS H. MARCOUX,
Defendant.
Order
Upon the finding that the above captioned action was
not frivolous, unreasonable or without foundation, it is
hereby
ORDERED that defendant’s Motion For Attorneys Fees
is denied.
Dated: March 5, 1979.
BY THE COURT:
s/ Richard P. Matsch
Richard P. Matsch, Judge
United States District Court
A6
APPENDIX C
(Filed September 9, 1980)
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Nos. 79-1347 and 79-1348
FRANK J. PROCHASKA,
Plaintiff-Appellant Cross-Appellee,
V.
FRANCIS H. MARCOUX,
Defendant-Appellee Cross-Appellant.
Appeal From the United States District Court
For the District of Colorado
D.C. No. 78-M-658
Joseph P. Jenkins, Estes Park, Colorado, for Plaintiff-Ap-
pellant. (Excused from oral argument).
David R. Brougham of Yegge, Hall & Evans, Denver, Colo-
rado, for Defendant-Appellee.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
BARRETT, Circuit Judge.
Frank J. Prochaska (Prochaska) appeals an order and
judgment granting Francis Marcoux’ (Marcoux) motion
for summary judgment. Prochaska initiated the action on
July 3, 1978 seeking compensatory and exemplary dam-
ages for Marcoux’ alleged violation of his civil rights under
AT
28 U.S.C.A. § 1983. A brief summary of the facts will
facilitate our appellate disposition.
Marcoux is a wildlife conservation officer with the
Colorado Division of Wildlife assigned to the Estes Park
area of Colorado. Marcoux’ duties as a wildlife officer
include law enforcement, game management, fish manage-
ment, and other duties related to management. As a wild-
life conservation officer Marcoux is empowered, and ob-
ligated to request the production of hunting and fishing
licenses (C.R.S. 1973, as amended, § 33-6-110). Marcoux
is further empowered and obligated, as a wildlife conserva-
tion officer, to stop and board any boats and vessels (C.R.S.
1973, as amended, § 33-31-111) operating within the waters
of Colorado, unless otherwise exempt, to ascertain if the
boat or vessel is properly registered and properly equipped
with safety equipment including sounding devices and fire
extinguishers, in accordance with the laws of Colorado.
On June 28, 1976, Marcoux, while on routine patrol,
observed Prochaska operating his boat on Lake Estes with-
out a current 1976 registration sticker. Since Marcoux had
been making his patrol in his four wheel drive pickup, and
a patrol boat was not available, he borrowed a boat from
a nearby marina operator to go on the lake to check Pro-
chaska’s registration, his fishing license, and safety gear.
Upon reaching Prochaska’s boat, Marcoux checked his
fishing license and safety equipment. In checking Pro-
chaska’s fishing license and his boat for safety equipment,
Marcoux remained in his own boat, did not enter Pro-
chaska’s boat or search it, and only visually examined it.
After determining that Prochaska had a valid fishing li-
cense but that he was operating his boat without a sounding
device and fire extinguisher, in violation of the laws of
Colorado, Marcoux told Prochaska that he would have to
issue a citation for not having the proper safety equipment
A8
in the boat and that Prochaska would have to accompany
him back to the boat docks.
After returning to the dock, Marcoux cited Prochaska
for ‘Operating a vessel without Proper Safety Equipment;
To Wit, No Fire Extinguisher, No Sounding Device”. Pro-
chaska originally refused to sign the citation; however, he
signed it after he was placed under arrest.
After Prochaska signed the citation, Marcoux inquired
about the boat registration. Prochaska responded that he
did have a temporary registration for the boat, and that
although he did not have it with him, he would bring it
with him to court when he was to appear for the safety
violation charges set forth in the citation.
Prior to Prochaska’s scheduled court appearance, Mar-
coux telephoned the boat division of the Division of Parks
and Outdoor Recreation to determine if Prochaska’s boat
was properly registered. Upon being informed that the
boat was not registered, Marcoux prepared a second cita-
tion charging Prochaska with operating a vessel without
a proper registration.
On July 2, 1976, the date of Prochaska’s scheduled court
appearance, Marcoux approached Prochaska in the court-
house hallway and handed him the second citation he had
prepared for operating a vessel without a proper registra-
tion. When Prochaska immediately produced a current,
valid temporary registration, Marcoux went directly to the
Assistant District Attorney who thereafter dismissed the
charge in open court. Subsequent thereto, Prochaska pro-
ceeded to trial. He was convicted for operating a vessel
in Colorado without proper and adequate safety equip-
ment. His conviction was affirmed on appeal.
On July 3, 1978 Prochaska filed a civil rights action
against Marcoux, alleging, inter alia: Marcoux’s actions
Ag
in citing him for operating a vessel without proper safety
equipment were undertaken maliciously and without prob-
able cause; Marcoux’ actions were accompanied by an abu-
sive and arrogant manner; Marcoux’ actions deprived him
of his right to be secure against unreasonable searches and
seizures, the right not to be deprived of life, liberty, or
property without due process of law, and the right of an
individual to be free from unreasonable interference by a
police officer. Prochaska sought compensatory damages of
$50,000 and punitive damages of $50,000.00.
In answer, Marcoux alleged that Prochaska had failed
to state a claim cognizable under the civil rights act and
that his actions were predicated on probable cause and un-
dertaken in good faith.
Subsequent to depositions being taken by both parties,
Marcoux filed a motion for summary judgment and memo-
randum in support thereof on January 2, 1979. On Feb-
ruary 21, 1979, more than six weeks after Marcoux had
filed his motion for summary judgment and supporting
memorandum, and at a time when Prochaska had failed to
eith r file a brief or affidavit in opposition to same, a
hearing was held before the Court on Marcoux’ motion
for summary judyment. At the conclusion of the hearing,
summary judgment was entered in favor of Marcoux, the
complaint was dismissed, and costs of the action were as-
sessed against Prochaska. Marcoux’ subsequent motion for
attorney fees was, however, denied.
On appeal Prochaska contends: (1) the Court erred
in granting Marcoux’ motion for summary judgment; (2)
the stop and search of his motor boat was violative of the
Fourth and Fourteenth Amendments; (3) there was not
probable cause for charging him with operating a vessel
without a proper and valid registration; and (4) his con-
stitutional rights were violated under the proscriptions of
the Civil Rights Act.
Al0
Marcoux cross-appeals the denial of his request for
attorney fees.
Prochaska contends the Court erred in granting Mar-
coux’ motion for summary judgment. Prochaska argues
summary judgment was improper herein since ‘“‘there are
several questions of material fact that cannot be resolved
on a motion for summary judgment, such as the veracity
of Marcoux in attempting to justify his random stop—that
he had called unknown persons attempting to check out
the existence or non-existence of a temporary registration
sticker ... [and]... whether the officer acted in a reason-
able manner by issuing a second citation without further
information would be a question for the finder of fact”.
[ Appellant’s Brief at pp. 13-14].
On appeal from an order granting a motion for sum-
mary judgment, the record is reviewed in light most favor-
able to the opposing party. Security National Bank v.
Belleville Livestock Commission Co., Inc., 619 F.2d 840
(10th Cir. 1980). Where different ultimate inferences may
properly be drawn, the case is not one for summary judg-
ment, Security National Bank, supra, and questions of in-
tent, which involve intangible factors including witness
credibility, are matters for consideration of the fact finder
after a full trial. Buell Cabinet Company, Inc. v. Sudduth,
608 F.2d 431 (10th Cir. 1979).
Parties like Prochaska, however, cannot rest on mere
allegations or denials, but must, by affirmative response
in affidavits or otherwise, set forth specific facts showing
that there is a genuine issue for trial. Security National
Bank, supra.
Applying these standards, we hold the Court properly
granted Marcoux’ motion for summary judgment. Noth-
ing within Prochaska’s deposition supported his allegation
that Marcoux acted in an abusive and malicious manner
All
in derogation of his constitutional rights. Furthermore,
nothing within Prechaska’s deposition rebuts Marcoux’ dep-
Ositional assertions that he properly cited Prochaska for
operating a vessel without proper safety equipment in vio-
lation of the laws of Colorado.
Prochaska’s failure to oppose Marcoux’ motion for sum-
mary judgment is not saved by his allegations on appeal
that ‘several material questions of fact’ remain un-
answered relative to the veracity of Marcoux’ justification
of stopping Prochaska, and whether Marcoux acted in a
reasonable manner in issuing a second citation. This is
particularly true herein, inasmuch as: the record clearly
establishes the lack of any additional questions of fact;
Prochaska acknowledges that he did not have a current
1976 registration sticker on his boat when Marcoux ap-
proached him; and there was no fire extinguisher in his
boat, constituting a violation of the laws of Colorado,
II,
Prochaska contends it is an unreasonable search and
seizure under the Fourth and Fourteenth Amendments to
stop a motor boat, being operated on a public lake, for
the purpose of checking the existence of safety equipment,
where there is neither probable cause to believe nor rea-
sonable suspicion that the boat is being operated contrary
to state laws relative thereto. In support of this conten-
tion, Prochaska relies on the recent Supreme Court decision
of Delaware v. Prouse, 440 U.S. 648 (1979).
In Delaware v. Prouse, supra, the Court observed:
The Fourth and Fourteenth Amendments are im-
plicated in this case because stopping an automobile
and detaining its occupants constitute a “seizure” with-
in the meaning of those Amendments, even though the
purpose of the stop is limited and the resulting deten-
Al2
tion quite brief. United States v. Martinez-Fuerte, 428
TT, S. 543, 556-558 (1976); United States v. Brignoni-
Ponce, 422 U. S. 873, 878 (1975); cf. Terry v. Ohio, 392
U.S. 1, 16 (1968). The essential purpose of the pro-
scriptions in the Fourth Amendment is to impose a
standard of ‘“‘reasonableness”’ upon the exercise of dis-
cretion by government officials, including law enforce-
ment agents, in order ‘“ ‘to safeguard the privacy and
security of individuals against arbitrary invasions.
...” Marshall v. Barlow’s, Inc., 436 U. S. 307, 312
(1978), quoting Camara v. Municipal Court, 387 U. S.
523, 528 (1967). Thus, the permissibility of a particular
law enforcement practice is judged by balancing its in-
trusion on the individual’s Fourth Amendment interests
against its promotion of legitimate governmental inter-
ests. Implemented in this manner, the reasonableness
standard usually requires, at a minimum, that the facts
upon which an intrusion is based be capable of measure-
ment against “an objective standard,” whether this be
probable cause or a less stringent test. [Footnotes
omitted }.
440 U.S. at pp. 653-654.
Under Delaware v. Prouse, supra, the stopping of an
automobile and the detention of its occupants, constituting
a seizure, is proper and considered reasonable if there is
an articulable and reasonable suspicion that either the mo-
torist is unlicensed or the vehicle unregistered, or that
either the vehicle or occupant is otherwise subject to seizure
for violating the law.
Applying Delaware v. Prouse, supra, to the instant
case, it is clear that Marcoux had “articulable and reason-
able suspicion” to believe that Prochaska’s boat was not
properly registered when he did not see a current Colorado
registration sticker affixed to the boat. Thus, Marcoux
Al3
was not only empowered but obligated to question
Prochaska. Marcoux’ deposition was unrebutted in that:
he observed Prochaska’s boat on Lake Estes during the
course of his routine patrol as a Colorado Wildlife Con-
servation Officer with the Colorado Division of Wildlife;
he observed Prochaska fishing on Lake Estes in a boat that
did not have a 1976 registration sticker on it; he there-
after went out on the lake for the specific purpose of check-
ing the boat registration; and after making boat contact he
routinely inquired of Prochaska and checked his boat for
fishing licenses and safety gear. Under these circum-
stances, we cannot accept Prochaska’s assertion that Mar-
coux’ search and seizure was unreasonable under the
Fourth and Fourteenth Amendments.
It may very well be true, as Prochaska argues, that it
is unlawful “to stop a motor boat, being operated on a
public lake, for the purpose of checking the equipment
where there is neither probable cause to believe nor rea-
sonable suspicion that the boat is being operated con-
trary to state laws governing the operation of motor boats”.
This argument, however, rings hollow when measured
against the facts presented by this record: Marcoux
observed a boat on Lake Estes without a current 1976
registration sticker; he went onto the lake to check the
registration and to effectuate a “boat contact” which rou-
tinely included checking for fishing licenses and safety
gear, and is considered “an all-encompassing contact”’.
In so doing, Marcoux was clearly acting in accordance with
the laws of Colorado under which “Every wildlife officer
. shall have the authority to enforce the provisions of
this article and in the exercise thereof shall have the au-
thority to stop and board any vessel subject to the pro-
visions of this article.’ C.R.S. 1973, as amended § 33-31-112.
Marcoux’ actions were therefore in accord with the
laws of Colorado and not violative of Prochaska’s Fourth
Al4
Amendment rights. As the Court recently observed in
United States v. Mendenhall, ........ Mae ese (May 27,
1980):
The purpose of the Fourth Amendment is not to elim-
inate all contact between the police and the citizenry,
but “to prevent arbitrary and oppressive interferences
by enforcement officials with the privacy and personal
security of individuals.” United States v. Martinez-
Fuerte, 428 U.S. 543, 554.
* * *
Moreover, characterizing every street encounter
between a citizen and the police as a “seizure,” while
not enhancing any interest secured by the Fourth
Amendment, would impose wholly unrealistic restric-
tions upon a wide variety of legitimate law enforce-
ment practices. The Court has on other occasions re-
ferred to the acknowledged need for police question-
ing as a tool in the effective enforcement of the crim-
inal laws. “Without such investigaton, those who were
innocent might be falsely accused, and those who
were guilty might wholly escape prosecution, and
many crimes would go unsolved. In short, the security
of all would be diminished. Haynes v. Washington,
373 U. S. 503, 515.” Schneckloth v. Bustamonte, supra,
at 225.
Slip op. at pp. 8-9.
III.
Prochaska contends that Marcoux lacked probable
cause for charging him with operating a vessel without a
proper and valid registration. This contention is frivolous.
Prochaska admits in his brief that he was operating
his boat on Lake Estes without a current 1976 registration
Ald
sticker. It is also uncontested that after issuing Prochaska
a citaton, Marcoux was told by the Denver Office of the
Parks and Recreation Boat Registration Department that
it had no record of the number obtained from Prochaska’s
boat and that a cross-check of Prochaska’s name showed
that no boat was registered to him. Thus, the fact that
Marcoux thereafter prepared a second citation charging
Prochaska with operating a boat without a proper and
valid registration, is of no moment, when, as here, Marcoux
promptly caused to have the citation dismissed after
Prochaska displayed a temporary registraton which ap-
parently had not been recorded by the Boat Registration
Department. Under these circumstances, we cannot hold
that Marcoux lacked probable cause to charge Prochaska
with operating a vessel without a proper and valid registra-
tion. Furthermore, in our view, the expedient manner in
which Marcoux proceeded to cause the citation to be dis-
missed after Prochaska displayed the temporary registra-
tion to him, defies the interpretation of any maliciousness
or bad faith by Marcoux in his issuance of the second cita-
tion. Marcoux’ actions did not give rise to a claim cogniz-
able under 42 U.S.C.A. § 1983.
IV.
Marcoux contends in his cross-appeal that the trial
court improperly denied his motion for attorney fees, re-
quested “pursuant to 42 U.S.C. § 1988 and the Order of
this Court”.
In denying Marcoux’ motion the Court ruled:
Upon the finding that the above captioned action
was not frivolous, unreasonable or without foundation,
it is hereby
Al6
ORDERED that defendant’s Motion For Attorney’s
Fees is denied.
[R., Vol. I, at p. 18].
We recently considered the propriety of awarding
attorney fees to a defendant in a civil rights action. In
Charles W. Morgan III and Leslie Karen Morgan v. Brit-
tany Apartments and Parceners, Ltd., No. 79-1230 (Un-
published, February 22, 1980), we observed “that the
applicable standard in ascertaining whether a fee should
be awarded to a defendant . . . depends on whether the
action is clearly frivolous, vexatious or brought for harass-
ment purposes.” [Sl. op. at p. 5]. We there cited to
Christiansburg Garment Co. v. Equal Employment Oppor-
tunity Commission, 434 U.S. 412 (1978) for the proposition
that a district court may, in its discretion, award attorney’s
fees to a prevailing defendant in a Title VII case upon a
finding that the plaintiff’s action was “frivolous, unreason-
able, or without foundation.” We opined and concluded in
Morgan v. Brittany, supra, that the District Court “made
no effort to determine whether the lawsuit was frivolous,
unreasonable or without foundation”. Thus, we vacated
the award of attorney fees to the defendant and remanded
the case for further consideration in accordance with
Christiansburg, supra.
The instant case is, in our view, clearly distinguishable
from Morgan v. Brittany, supra, where the District Court
failed to apply the Christiansburg, supra, standard. In the
case at bar, we conclude that the District Court erred in
finding that Prochaska’s action was not “frivolous, un-
reasonable or without foundation”, under the Christians-
burg standard.
In Christiansburg, supra, the Supreme Court, in ad-
dressing the applicable standard, observed:
Al7
To take the further step of assessing attorney’s fees
against plaintiffs simply because they do not finally
prevail would substantially add to the risks inhering
in most litigation and would undercut the efforts of
Congress to promote the vigorous enforcement of the
provisions of Title VII. Hence, a plaintiff should not
be assessed his opponent’s attorney’s fees unless a
court finds that his claim was frivolous, unreasonable,
or groundless, or that the plaintiff continued to liti-
gate after it clearly became so. And, needless to say,
if a plaintiff is found to have brought or continued
such a claim in bad faith, there will be an even stronger
basis for charging him with the attorney’s fees in-
curred by the defense.
434 U.S. at p. 422.
This standard was recently reiterated in Roadway
Express, Inc. v. Equal Employment Opportunity Commis-
Gs cnecxs | ee (June 23, 1980) in which the Court
Prevailing plaintiffs in civil rights cases win fee awards
unless “special circumstances would render such an
award unjust,” Newman v. Piggie Park Enterprises,
390 U. S. 400, 402 (1968) (per curiam), but a prevail-
ing defendant may be awarded counsel fees only when
the plaintiff's underlying claim is “frivolous, unrea-
sonable, or groundless.” Christiansburg Garment Co.
v. EEOC, 434 U.S. 412, 422 (1978).
Sl. op. at p. 9.
Applying this standard to the facts herein we hold that
Prochaska’s claim was clearly “frivolous, unreasonable or
groundless”. Marcoux’ unrebutted testimony is that he
checked out Prochaska’s boat because it did not have a
current 1976 registration sticker, and that in conjunction
A18
with the “boat contact” he routinely checked for fishing
licenses and boat safety gear. Thereafter Prochaska went
to trial and was convicted of violating Colorado’s boating
safety laws. This conviction was affirmed, after which
Prochaska initiated this civil rights action against Mar-
coux for allegedly violating his constitutional rights.
Prochaska’s complaint alleges that Marcoux’ actions
were performed “knowingly, intentionally, and maliciously,
in utter and callous disregard of the rights of plaintiff
[Prochaska].” Prochaska’s deposition, however, fails to
establish or reinforce these allegations. On the contrary,
Prochaska, within his deposition, acknowledged that he
did not have a fire extinguisher or sounding device in
his boat when Marcoux approached and that he was aware
that under the laws of Colorado he was required to have
such equipment. Prochaska also acknowledged that Mar-
coux did not actually enter his boat and that “All I know
is that he was trying to determine whether I had those
pieces of equipment [safety]”.
Affirmed as to Prochaska.
Reversed and Remanded as to Marcoux for the calcu-
lation and award of attorney fees.
Judge Doyle, Concurring in part and dissenting in part.
I concur in the affirmance of the trial court’s judg-
ment in favor of the defendant-appellee in the case in chief.
In concurring I note that the plaintiff’s case is not the
strongest ever to come to my attention. On the other
hand, it is not the weakest. One problem from which it
suffers is that the basic set of facts constitutes a lot of
ado about nothing.
It was basically of little moment. It is not designed
to stir up the sympathy or compassion of any court. A
little common sense on the part of the officer and on
Alg
the part of the plaintiff could have solved it. Perhaps
the factor which produced it was the apparent belief of the
plaintiff that the officer and Harris, the operator of the
Marina were in cahoots. We will never know for sure
whether this was the case but the evidence points in the
direction of their not being in a conspiracy against the
plaintiff. So it likely started on a misconception. An-
other problem was the filing by the officer of a second
charge and doing so without checking out the registration.
Even if this was a good faith mistake, it started the
trouble.
The trial court found and determined that the defen-
dant appellee was not entitled to an attorney’s fee; that
the action of plaintiff was not frivolous, unreasonable, or
without foundation. This is a matter which is properly
for the trial court to determine. For this court to refind
the facts and reverse on the ground that the cause was
frivolous calls for the application of a plain error standard.
This was not the condition. (With all respect te my
brother. )
The law is not obscure. Christianburg Garment Co.
v. EEOC. 432 U.S. 412. That together with Newman v.
Piggie Park Enterprises, 390 U. S. 400 set down the gov-
erning law and demonstrated the vast difference between
an award of fees to a plaintiff and an award to a defen-
dant. If the majority were to follow the teachings of
these cases we would be unanimous in our judgment.
But, the majority opinion is even out of harmony with
the decision of this court in E.E.O.C. v. Fruehauf Cor-
poration, 609 F. 2d 434.! It would also undermine this
1. In that Title VII case this court said: ‘There is nothing
in the record * * * before us to support the trial court’s finding
that the action was frivolous from its inception, or that EEOC
was motivated by something other than good faith, presumably
bad faith. Cottrell v. Newspaper Agency Corporation, 590 F. 2d
836, 839 (10th Cir. 1979).
A20
court’s decision in Morgan v. Brittany Apartments and
Parceners, Ltd. No. 79-1230 (unpublished to date, but due
to be published immediately ).
There is reason to believe that the case before us is a
first in the matter of award of a fee to a plaintiff. Surely
if there were even one authority favoring the stand taken,
it would be cited. Judge Barrett would have discovered
it. I am not one to object to pioneering. It is the par-
ticular effort that bothers me. If a case is to be considered
frivolous based on the length of the chancellor’s foot, se
to speak, the results are going to be unfortunate.
A2l
APPENDIX D
September Term — November 10, 1980
Nos. 79-1347 and 79-1348
FRANK J. PROCHASKA
Plaintiff-Appellant Cross-Appellee,
VS.
FRANCIS H. MARCOUX,
Defendant-Appellee Cross-Appellant.
This matter comes on for consideration of appellant’s-
cross appellee’s petition for rehearing and suggestion for
rehearing en banc in the captioned cause.
Upon consideration whereof, the petition for rehear-
ing is denied by the panel to whom the cases were argued
and submitted.
The petition for rehearing having been denied by the
panel to whom the cases were argued and submitted, and
no member of the panel nor judge in regular active service
on the Court having requested that the Court be polled
on rehearing en banc, Rule 35, Federal Rules of Appellate
Procedure, the suggestion for rehearing en banc is denied.
/s/ Howard K. Phillips
Howard K. Phillips, Clerk
A22
APPENDIX E
Rules of Court
10 (e) In the interest of expediting final disposition
of pending cases, the chief judge may designate panels
of three judges to review pending cases at any time prior
to oral argument and submission to determine whether
oral argument is needed.
Oral argument will be allowed in all cases unless
a panel of three judges, after examination of the briefs
and records, shall be unanimously of the opinion that
oral argument is not needed. The panels will utilize cri-
teria which will allow oral argument unless they conclude
the appeal is (1) frivolous; or (2) the dispositive issue
or set of issues has been recently authoritatively decided;
or (3) the facts and legal arguments are adequately pre-
sented in the briefs and record and the decisionai process
would not be significantly aided by oral argument.
In aid of the disposition of pending cases under these
rules, any party in an original proceeding, an agency pro-
ceeding, or an appeal, may include in his brief or memoran-
dum his application, petition, or motion made under 10th
Cir. R. 9(a), or in his answer to any of these, a statement
setting forth reasons why, in his opinion, oral argument
should be heard. If all of the judges of the panel to
which an original proceeding, an agency proceeding, or
a pending appeal, has been referred conclude that one
or more of the criteria have been met, they may make
an appropriate disposition, without oral argument, includ-
ing denial, dismissal, affirmance, or reversal.
In cases assigned to the A or B calendar, if counsel
believes oral argument will not help the court in deciding
the case, he should file as soon as possible after the filing
of the appellee’s brief, a motion to submit the case on
the briefs. The decision of whether oral argument shall
be heard will be made by the court.
A23
APPENDIX F
UNITED STATES COURT OF APPEALS
. TENTHCIRCUIT
No. 79-1347
No. 79-1348
FRANK J. PROCHASKA,
Appellant,
VS.
FRANCIS H. MARCOUX,
Appellee.
Appeal from the United States District Court for
the District of Colorado
Affidavit
STATE OF COLORADO )
im
COUNTY OF LARIMER
Joseph S, Payne, of lawful age, being first duly sworn
upon his oath, deposes and states as follows:
1. Affiant is an attorney at law and an office associate
of Joseph P. Jenkins, counsel for the Appellant in the
within cause.
2. On July 7, 1980, Mr. Jenkins was in Chicago, Illi-
nois, due to the sudden death of his mother, taking care
of funeral arrangements and her business affairs as her
oldest child.
3. On July 7, 1980, Affiant received a telephone call
from Mr. Jenkins advising that he could not return from
Chicago in time for the oral argument set in this cause
for Tuesday, July 8, 1980. Mr. Jenkins requested that
A24
Affiant immediately notify the court so that the case could
be put over for argument at a later date.
4, On Monday, July 7, 1980, at sometime during
the morning hours, Affiant spoke with Mr. Phillips, the
Clerk of the Court, and advised him of Mr. Jenkins’s
emergency. Affiant told Mr. Phillips that Mr. Jenkins
requested that the case be put over for argument at a
later date. At no time did Affiant tell Mr. Phillips that
Mr. Jenkins was requesting a waiver of oral argument
or to be excused therefrom. At no time did Mr. Jenkins
tell this Affiant that he intended to waive oral argument
or to be excused from arguing.
5. Affiant cannot account for the fact that the argu-
ment went ahead on Tuesday, July 8, 1980, in spite of
the fact that Mr. Jenkins had been confronted with a
dire and immediate emergency.
6. Affiant has known Mr. Jenkins for over thirty
years, and has never known him to miss an oral argument
or waive oral argument except in one simple case in the
Colorado Court of Appeals.
7. Affiant is of the opinion that there was a lack
of communication between him and Mr. Phillips, and that
Mr. Jenkins should be given his opportunity to argue this
cause.
Further Affiant saith not.
/s/ Joseph S. Payne
Joseph S. Payne, Affiant
Subscribed and sworn to before me this 7th day of
October, 1980.
/s/ Nancy M. Jenkins
Notary Public
My commission expires: June 3, 1974.
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.