Petition — Rupe v. Blake

Office - Supreme Court, U.S.

82-1082 ied

DEG 27 1982

ALEXANDER L. STEVAS,

CLERK

| Nae

In The

Supreme Court of the United States

October Term, 1982

THOMAS N. RUPE,

Petitioner,

vs.

RUTH BLAKE AND LOUIS DEKMAR,

Respondents.

ty

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WYOMING

co)

Raymonp B. Hunxrns

Jones, Jones, Vines & HuNKINS

953 Water Street

P. O. Drawer 189

Wheatland, Wyoming 82201

Attorney for Petitioner

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

QUESTIONS PRESENTED FOR REVIEW

. Is the vote of a juror in deciding a verdict in a crim-

inal case a form of speech protected by the provi-

sions of the First Amendment of the United States

Constitution so that the punishment of a state court

juror on account of his verdict creates a cause of

action under 42 U.S. C., 4 1983?

. Is the drafting and distribution of press releases by

a state prosecuting attorney a judicial function pro-

tected by the absolute immunity recognized in Imler

v. Pachtman?

. Is a prosecutor who maliciously files false criminal

charges against a juror to punish him for his ver-

dict protected by the absolute immunity recognized

in Imler v. Pachtman?

. Does the decision of the highest court of a state, find-

ing that an unpleaded affirmative defense is avail-

able to a civil defendant and reversing the decision

of the court below based on the unpleaded affirma-

tive defense, without affording the plaintiff an oppor-

tunity to present evidence relating to that defense,

deny the plaintiff due process of law as guaranteed

under the Fifth and Fourteenth Amendments to the

United States Constitution?

. May a state court consigering a claim under 42

U.S.C. $1983 alter the burden of proof on the

question of good faith immunity required in Federal

actions under this same state statute?

ii

TABLE OF CONTENTS

Pages

Opinion Below 1

Statement of Jurisdiction 2

Statutes Involved ........ 2

Statement of the Case 2

Reasons For Granting The Writ 5

Conclusion 12

Appendix A, Jury Verdict App. 1

Appendix B, Judgment on Jury Verdict ..................App. 2

Appendix C, Opinion of Wyoming Supreme Court..App. 4

Appendix D, Petition for Rehearing App. 81

Appendix E, Order Denying Rehearing ................... App. 83

Appendix F, Order and Judgment on Mandate .. App. 84

TABLE OF AUTHORITIES

Casks

Dennis v. Sparks, 101 S. Ct. 183 (1980) oom 11

Gutierrez v. Vergari, 499 F. Supp. 1040 (S. D.

N. ¥. 1980) 9

Hampton v. Hanrahan, 600 F’, 2d 600 (7th Cir. 1979)... 9

Helstoski v. Goldstein, 552 F’. 2d 564 (3rd Cir. 1977) ..... 9

Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984,

47 L. Ed. 2d 128 (1976) 7, 8, 10, 12, 13

iii

TABLE OF AUTHORITIES—Continued

Pages

Marrero v. City of Hialeah, 625 F. 2d 499 (5th

Cir. 1980) 9

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

100 S. Ct. 553, 62 L. Ed. 2d 481 (1980) 8

Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683,

40 L. Ed. 2d 90 (1974) 5

Sperl v. Deukmejian, 482 F. Supp. 1026 (1980),

642 F. 2d 1154 (9th Cir. 1981) 9

Strong v. Slaton, 510 F. Supp. 161 (N. D. Ga. 1981) .....

Walker v. Calahan, 542 F. 2d 681 (6th Cir. 1976),

cert. den. 430 U.S. 966, 97 S. Ct. 1647, 52 L. Ed.

2d 357 . 9

SvTaTures

28 U.S. C. $ 1257 (3) 2

42 U.S.C. $1983 2, 4, 5, 6,7, 9, 11

ConstITUTIONS

First Amendment to the United States Constitu-

tion 4,5

Sixth Amendment to the United States Constitu-

tion 6

Fourteenth Amendment to the United States Con-

stitution 4,5, 10,12

Article VI of the United States Constitution 00000000. 8

a RA al

io)

In The

Supreme Court of the United States

October Term, 1982

°

THOMAS N. RUPE,

Petitioner,

vs.

RUTH BLAKE AND LOUIS DEKMAR,

Respondents.

°

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF WYOMING

°

The caption of this case contains the names of all

parties.

OPINION BELOW

The official report of the opinion of the Wyoming

Supreme Court appears at 651 P. 2d 1096.

The decision of the Wyoming Supreme Court sought

to be reviewed was dated and entered on September 14,

2

1982. A Petition for Rehearing was denied on October 5,

1982.

“.

Vv

STATEMENT OF JURISDICTION

This Court has jurisdiction to review the decision

pursuant to 28 U.S.C., § 1257(3).

—0O

STATUTES INVOLVED

This case involves 42 U.S. C., $1983:

§ °°33. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

For the purposes of this section, any Act of Con-

gress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District

of Columbia.

, ———

Ww

STATEMENT OF THE CASE

The Appellant/Plaintiff, Tom Rupe, the sixty-two-

year-old Chief Building Inspector of Douglas, Wyoming,

was called as a juror and served on the jury in a first

degree murder case in State Court. The Appellees Blake

and Dekmar were the prosecuting attorney and the prose-

cutor’s investigator respectively, and prosecuted the mur-

der trial. The jury found the defendant in that case

not guilty. This verdict angered Blake and Dekmar and

3

they focused their anger on the jury and the Trial Court

Judge.

They later learned that Mr. Rupe had pled guilty

himself to an insufficient funds check charge some thirty

years earlier. They also learned that Mr. Rupe’s rights

had been restored by the governor of Wyoming a year

after his plea. Despite the fact they knew Mr. Rupe

had been truthful in all of his responses made during

jury qualification and selection, Blake and Dekmar de-

cided to falsely charge Tom Rupe with perjury in those

proceedings and to publicize the charges, in order to

punish him for his participation in the jury verdict against

them, and to intimidate other jurors from finding against

them in the future.

Blake drew up the false charges and Dekmar signed

them. Both of them knew the charges were false. The

false perjury charge was filed and Mr. Rupe was sum-

moned to answer to it. Blake then drew up a press re-

lease containing information of the charges against Mr.

Rupe and other information derogatory to him and caused

it to be distributed to the various news media. Dekmar

went out of his way to see that Tom Rupe’s employer

was notified. A preliminary hearing was held before

the local justice of the peace, who determined that there

was no probable cause to bind Mr. Rupe over for trial.

The perjury charge was dismissed. Unfortunately, Mr.

Rupe had already suffered damages from the Defend-

ants’ malicious actions and outrageous conduct.

The action sought to be reversed was filed by Mr.

Rupe against Blake and Dekmar seeking compensatory

and punitive damages. The Complaint contained a cause

of action for violation of Mr. Rupe’s constitutional civil

+

rights under 42 U.S.C., $1983. Causes of action were

also asserted under state tort law.

At the close of the evidence the trial court dismissed

the civil rights cause of action under 42 U.S.C., § 1983.

The Defendants’ argument in this regard was that § 1983

only protects federal constitutional rights and that no

such rights were involved in this case. Plaintiff’s coun-

sel argued that the actions of the Defendants were di-

rected towards punishing Mr. Rupe’s honest deliberations

as a juror and therefore violated his right to free speech

under the First and Fourteenth Amendments. The case

was submitted to a Converse County jury on the under-

lying tort claims and it returned a verdict in favor of

Tom Rupe and against the Converse County Attorney

and her investigator, assessing Sixty Thousand Dollars

($60,000.00) in actual] damages and One Hundred Forty

Thousand Dollars ($140,000.00) in punitive damages. The

Trial Court entered judgment on the verdict and denied

Defendants’ post-trial motions, the Trial Judge comment-

ing, ‘‘.... [I haven’t heard any case that’s been on all

4’s with this case—the prosecutor, the investigator, the

defendant as a result of being a juror who sat in a case

where there was an acquittal of a defendant.’’ The Wy-

oming Supreme Court reversed on appeal with two jus-

tices dissenting.

The majority of the Wyoming Supreme Court heid

that Blake was protected from liability on all state court

claims by an absolute prosecutorial immunity. That Court

held that the press release made by the prosecutor was,

‘‘within the outer perimeter of the prosecutor’s authority

and diseretion.’’ Based on that holding the Wyoming

Supreme Court found the dissemination of the press re-

5

lease protected by absolute immunity. Tom Rupe had

filed an appeal from the trial court’s dismissal of the

Federal Civil Rights cause of action. The Wyoming Su-

preme Court, without specifically addressing the § 1983

action, found the Defendants clothed with immunity.

The Wyoming Supreme Court further held that Dek-

mar, the investigator, was not entitled to absolute immu-

nity, but only had a qualified immunity if he acted in

good faith and upon a reasonable belief in the lawful-

ness of his acts, citing Scheuer v. Rhodes, 416 U.S. 232,

94 §. Ct. 1683, 40 L. Ed. 2d 90 (1974). While Dekmar

had never asserted this qualified immunity, relying solely

on an extension of absolute immunity for prosecutors, and

had never asserted that he acted in good faith or upon

a reasonable belief in the lawfulness of his acts, the Wy-

oming Supreme Court found, ‘‘As a matter of law that

he acted reasonably, in good faith in light of all the cir-

cumstances existing at the time.’’ Based on that finding

the Wyoming Supreme Court clothed Dekmar with the

qualified immunity he had never alleged or sought to

prove, and directed the trial court to enter judgment for

Dekmar without giving the Plaintiff an opportunity to

present evidence relating to the new defense.

Plaintiff brought this situation to the attention of

the Wyoming Supreme Court in a Petition for Rehear-

ing. The Petition was denied.

4.

Vv

REASONS FOR GRANTING THE WRIT

This case presents important issues which have not

been, but should be, settled by this Court. Those ques-

tions relate to 42 U.S.C., $1983 and the immunities of

state prosecuting attorneys and their employees under

that statute. They also relate to the qualified immunity

given to officers of the executive branch of government

and the requirements necessary to come within that im-

munity under federal law. The threshold question to

all of these issues is whether the Plaintiff’s claim falls

within the protection of 42 U.S. C., § 1983.

The Wyoming Supreme Court found that the De-

fendants herein were acting in their official capacities

in taking the actions which injured the Plaintiff (p. 4,

Slip Opinion). Thus, their actions were under ‘‘color of

law.’’ If those actions deprived the Plaintiff of any

“rights, privileges or immunities secured by the Consti-

tution and laws,’’ then the Plaintiff had a cause of action

against the Defendants under 42 U.S.C., §1983. The

trial court held that no such cause existed, This decision

was affirmed by the Wyoming Supreme Court.

The Plaintiff argued that a juror is protected from

retaliation, on account of his verdict, by the United States

Constitution. Specifically, Tom Rupe asserted that his

right to freedom of speech secured by the First Amend-

ment and applied to the states by the Fourteenth Amend-

ment was violated by the Defendants’ actions. He also

cited the guarantee of impartial juries in criminal cases

contained in the Sixth Amendment and the requirement

of due process inherent in the Fourteenth Amendment

which, he argued, required jurors be protected from at-

tacks on their verdicts. Besides the obvious conflict be-

tween the trial court’s decision and the First Amend-

ment guarantee of free speech, this case presents basic

questions regarding the structure of American govern-

7

ment. The Court’s holding that jurors are not protected

from attack bears on the doctrines of separation of pow-

ers and checks and balances. In effect, the decision cre-

ates a new check on the power of the judicial branch of

government by the executive. This check has never be-

fore been recognized under the Wyoming Supreme Court

decision. If the executive is dissatisfied with the decision

of a jury or a judge, it can file, or cause to be filed, false

criminal charges against the offending individuals and

have them arrested in order that they be silenced or

punished,

Allowing this case to stand without correction would

disrupt the balance of powers between the various

branches of government which our Constitution created,

The concept of inviolability of a juror for his verdict

was a basic principle of the common law which is integral

to the concept of due process. It is hard to believe that

any court in this land would allow an attack on a juror

without recognizing this as an affront to the Constitu-

tion, That the Supreme Court of Wyoming has done just

that, highlights the need for a definitive statement by

the highest court of the land, admonishing that the con-

duct complained of is a violation of the constitutional

rights of all who are called to serve the judicial system.

This Court held in Imbler v. Pachtman, 424 U.S.

409, 96 S. Ct. 984, 47 L. Ed, 2d 128 (1976), that there is

an absolute immunity for state court prosecutors from

actions under 42 U.S.C., § 1983 for actions they might

take within their judicial function. The limits of this

immunity have yet to be defined. The immunity was

found necessary to protect the vigorous and fearless per-

formance of the prosecutor’s duty that is essential to the

8

proper functioning of the criminal justice system. Imbler

v. Pachtman, at 428, This case presents a question of

whether the immunity should extend to protect a prosecu-

tor from liability for his assaults on a citizen summoned

to serve the criminal justice system.

When the need for fearless prosecution comes directly

in conflict with the need for fearless decision making

by a citizen jury, a determination must be made as to

which of these needs is most sacred and worthy of pro-

tection. The Wyoming Supreme Court determined that

among the competing needs, the need for vigorous prosecu-

tion outweighs the need for fearless citizen jurors. That

determination should be reviewed. State law does not

control a federal cause of action, even though it is as-

serted in state court. Martinez v. State of California, 444

U.S. 277, 100 S, Ct. 553, 62 L. Ed. 2d 481 (1980). This is

required by Article VI of the United States Constitution.

The question of the extent of immunity must be decided

under federal law.

This case presents a most extreme case of prosecu-

torial misconduct. This case presents the least justifica-

tion for the extension of prosecutorial immunity. If there

is any area in which a prosecutor should be held respon-

sible for his actions, this case falls within it. A clear

statement as to whether prosecutorial immunity should

extend, in its absolute form, to this extreme situation,

would answer the question of what limits, if any, the

principle of prosecutorial immunity has. Because of the

rarity of cases refiecting gross abuse of power on the

part of a prosecutor, directed against the judicial system,

this Court will not likely have a similar opportunity to

9

address the issue here presented. The Court should take

this opportunity to determine whether any limits exist

to absolute prosecutorial immunity.

This case also presents the question of whether the

dissemination of press releases is within the judicial fune-

tion of a prosecuting attorney and, as such, whether it

is then protected by absolute immunity. The Wyoming

Supreme Court decided that the press release was so

protected because it was, “within the outer perimeter of

the prosecutor’s authority and discretion.” This decision

is in conflict with the decisions of the federal courts of

appeals on this question which held that press releases

were not protected by absolute immunity. Marrero v.

City of Hialeah, 625 F., 2d 499 (5th Cir. 1980); Hampton

v. Hanrahan, 600 F. 2d 600 (7th Cir, 1979); Helstoski v.

Goldstein, 552 F. 2d 564 (8rd Cir. 1977); Walker v. Cala-

han, 542 I. 2d 681 (6th Cir. 1976), cert. den. 480 U.S.

966, 97 8. Ct. 1647, 52 L. Ed. 2d 357,

There is also a conflict between the circuits on this

issue. The Ninth Circuit approved the decision of a dis-

trict court finding leaks to the press protected by abso-

lute immunity. Sperl v. Deukmejian, 482 F.Supp. 1026

(1980), 642 F’. 2d 1154 (9th Cir. 1981). District courts in

other circuits have made similar holdings. Gutierrez v.

Vergari, 499 F.Supp. 1040 (S.D. N. Y. 1980), Strong v.

Slaton, 510 F.Supp. 161 (N.D. Ga. 1981). Because of

the present conflict which exists between the circuits,

citizens of various areas of the country are afforded dif-

ferent rights and protections under 42 U.S.C. § 1983, The

issue needs to be clarified by the United States Supreme

Court so that all citizens will be treated equally, without

regard to where they live or are injured.

10

The Wyoming Supreme Court also applied the wrong

test to determine whether the conduct was within the

immunity, The United States Supreme Court, in Jmbler

determined that the immunity extended to activities “in

timately associated with the judicial phase of the erim-

inal process,” The standard used by the Wyoming Su-

preme Court, “within the outer perimeter of the prose-

cutor’s authority and diseretion,” overwhelms the restric.

tions of the test set out in Zmbler,

The final issues presented in this case deal with the

Wyoming Supreme Court’s award of judgment to the De-

fendant Dekmar, the prosecutor’s investigator, based on

an immunity he had never asserted, The Plaintiff con-

tends that this action denies him due process of law, The

states «re required to afford citizens due process of law

by the Fourteenth Amendment to the United States Con-

stitution, This provision binds the judicial branches of

state courts, as well as the states’ executive branches,

State courts are required to afford litigants the basic

elements of procedural due process. Among those ele-

ments are notice of the allegations of opposing parties

and an opportunity to present evidence rebutting those

allegations.

In this case the Plaintiff was given no notice that

the investigator asserted a qualified immunity of “good

faith”, The investigator never did assert it. The Wy-

oming Supreme Court recognized this, “Dekmar claims

he is entitled to absolute immunity,” (p. 18, Slip Opinion),

After recognizing that the investigator is not accorded

an absolute immunity, the Wyoming Supreme Court held

that he would be entitled to qualified immunity, despite

the fact that he had never raised the defense in his

iI

pleadings or ever even used the terms “good faith” or

“reasonable belief”, Onee the Wyoming Supreme Court

had decided to extend the benefit of the unasserted co-

fense to the investigator, it went on to determine the facts

as they applied to this defense, without affording the

Plaintiff an opportunity to present evidence on the de-

fense,

Despite the jury’s findings that the investigator was

liable for punitive damages, which required the jury to

find the investigator guilty of willful, wanton or malicious

conduct, the Wyoming Supreme Court determined that,

“We find no evidence of bad faith or unreasonable con-

duet by Dekmar.” Based on that finding, the Wyoming

Supreme Court determined, “as a matter of law that he

acted reasonably, in good faith.” This clearly indicates

that the Wyoming Supreme Court placed the burden of

proof of bad faith on the Plaintiff, This is direetly con-

trary to the holding of the United States Supreme Court

that, “the burden is on the official claiming immunity to

demonstrate his entitlement.” Dennis v, Sparks, 101

8. Ct. 183 (1980),

It has long been recognized that states cannot create

immunity to federal civil rights actions, even if those

avtions are pursued in state court, What the State of Wyo-

ming is prohibited from doing directly, it is attempting

to do indirectly in this case, By placing procedural road-

block, such as allowing unpleaded affirmative defenses,

before civil rights litigants in state courts, and by alter-

ing substantive aspects of § 1983 causes, such as chang-

ing the burden of proof and quantum of evidence, a state

can dilute the protection of this statute as easily as by

declaring its own immunities, Section 1983 was created

12

to control state action and enforce the Fourteenth Amend-

ment. If states are allowed to dilute its protection, its

purpose will not be served,

0—— -----

CONCLUSION

The issues presented by this case need to be ad-

dressed and clarified by the United States Supreme Court,

The facts of this case are un yue, As the trial judge

stated, there is no case “on all 4’s with this case.” Thomas

Rupe was compelled to serve as a juror, He asked to be

relieved from that service but his request was denied, He

approached jury service as a civie duty and did his beat

to perform that duty, Because of his conscientious ef-

forts, he was attacked and punished,

The Wyoming Supreme Court not only found that

Mr, Rupe was not entitled to compensation for his dam-

ages but punished him further by ordering him to pay

the costs incurred by the defendants, The impartial jury

system is the most cherished base of our system of law.

It should be protected from attacks, no matter what the

source. The mere fact that a person is a prosecutor or

an employee of a prosecutor should not give them author-

ity to beat a jury into submission with false criminal

charges. It is often said that no man is above law, That

principle should be reaffirmed.

There are limits to the principle of prosecutorial im-

munity. That fact was recognized in Jmbler v, Pachtman,

but the defining of those limits was left to a later case.

This case is the appropriate one for defining those limits,

13

As the concurring opinion in Imbler recognized, “Where

the reason for the rule extending absolute immunity to

prosecutors disappears, it would truly be ‘monstrous to

deny recovery.’” In this case the reason has disappeared

and the denial of recovery by the Wyoming Supreme

Court is truly monstrous, not only to Thomas Rupe, but

to the judicial system which he was serving when he an-

gered the defendants.

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Raymonp B, Hunxins

Jones, Jones, Vines & Hunkins

P.O. Drawer 189

Wheatland, Wyoming 82201

Attorneys for Thomas Rupe