Petition — Tower v. Glover

Gils, ~reme Co U.S.

.riLEey

82-1988 WAY SL 1983

; | ALEXANDER L. STEVAs,

In the Supreme Court

of the Gaited States

OCTOBER TERM, 1982

BRUCE TOWER, Public Defender

of Douglas County, Oregon, and

GARY BABCOCK, Public Defender

of the State of Oregon,

Petitioners,

Vv.

BILLY IRL GLOVER,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Solicitor General

*JAMES E. MOUNTAIN, JR.

Deputy Solicitor General

100 Justice Building

Salem, Oregon 97310

Telephone: (503) 378-4402

Counsel for Petitioners

QUESTION PRESENTED

Whether 42 U.S.C. § 1983 authorizes a convicted

person to assert a claim for damages against the

public defenders who represented him at his crimi-

nal trial and appeal, on a theory that the public

defenders deprived him of his constitutional rights

pursuant to a conspiracy with state judges and

administrative officials.

TABLE OF CONTENTS

Brief —

Question Presented............ccccccccsesseeneenenasneeeenesetsenetnenesneesenenneneneey i

Opinions Below ...........:c:cscssssseseesensnensenenserenseteeessenseneneenannenenseeeees 1

i i csninanacececdsenssnnuntoeiscnsoveaseosvescnscconsusovencnstesnesaneazes 1

Constitutional Provisions and Statute Involved ..............:000088 2

Statement of the Case..........scccccccccsssssssscssssseesecseseeesessesseeesesssssscees 3

Reasons for Allowance of Writ ..............:c:ccceseseeeeeeeeeeeeeeeeeeeeeeeeeeeees 8

ogi cccscisececvevchicandnesenavensonecaseenscnencencccesnpenensesensosense 18

Appendix A ........cccccscessssessssesessessessnensensnsansenensenecsessenenennenaenenaanens 19

Appendix B...........:ccccccsscssceseeseeseneeestessssnecersnseeeeneneeasensnaenaenaneanens 25

Agmponndiixt C............s.cccccccrcecsssseeseesences Disco cdiadacanmessniaaiaeesneenel 29

: i

TABLE OF AUTHORITIES

Cases Cited —

Agersinger v. Hamlin, 407 US 25 (1972) .......ccccccccccceceseeererseees 15

Black v. Bayer, 672 F2d 309 (1982) ...........cccccceceeerereeeeeetees 8,14,17

Briscoe v. Lahue, __. US_ —__, 108 SCt 1108 (1983) .............. 12

Brown v. Joseph, 463 F2d 1046 (3rd Cir. 1972).........:ccccceee 14

Dennis v. Sparks, 449 US 24, 29 (1980) ........:ccccccceeeeseereereeteeees 8

Dodson v. Polk County, 628 F2d 1104 (8th Cir. 1980),

reversed on other grounds, Polk County v. Dodson,

I ia ccecntne sep esesicstarsssnenennsnspaasousors 9

Ferri v. Ackerman, 444 US 193 (1979)........::ccccccseeeeeeeseeeeee Passim

Gideon v. Wainwright, 372 US 335 (1963)...........ccccceeeeeeeees 15

Billy Irl Glover v. Bruce Tower, Public Defender

of Douglas County, Oregon and Gary Babcock,

Public Defender of the State of Oregon, No. 81-3199

iach deeds casdsesesnmncnensiececconenssssene 1

Glover v. Tower, 700 F2d 556 (9th Cir. 1983)...............:::05. 1,8,10

Hall v. Quillen, 631 F2d 1154, 1155 (4th Cir. 1980)..............06 9

Housand v. Heimen, 594 F2d 923 (2d Cir. 1979) ..........ccccccceceeeees 9

Imbler v. Pachtman, 424 US 409 (1976)..........:cccccccceeceeeeeeeeee 12,16

Miller v. Barilla, 549 F2d 648, 649 (9th Cir. 1977)... 6,7

Minns v. Paul, 542 F2d 899 (4th Cir. 1976).............:::cccceeeeeeeeeeees 9

Pierson v. Ray, 386 US 547 (1967).........:ccccccsssceesereeeeseeeceeeees 12

Polk County v. Dodson, 454 US 312 (1981)... Passim

Robinson v. Bergstrom, 579 F2d 401 (7th Cir. 1978)... ............ 10

Constitutional Provisions

ioe iai eiiccesccesececesssisvnnanonasbonnescsnesvonnens 2

Te a icaid catdesesacsensenssieniacssnqnabnrenenieqiansens 2

iv

TABLE OF AUTHORITIES — Continued

Statutory Provisions Page

I isa vac cnhecacopeavoveoucraseetusincs 2

et NS TET ESCE SSSI tS 0200.00 a gO eR SOE os 2

ES eee 2

soil BURRESS IOST OST LS 5 SEA EER ge SON an Passim

Other Authorities

Benner, L. & Neary, B, The Other Face of Justice 72 (1973)....15

Mounts, Public Defender Programs, Professional

Responsibility, and Competent Representation,

pee eee oe ee, re ee Ol 15

Petitioner Bruce Tower, the Public Defender of

Douglas County, Oregon, and petitioner Gary

Babcock, the Public Defender of the State of Oregon,

respectfully pray that this Court issue a Writ of

Certiorari to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit

in Billy Irl Glover v. Bruce Tower, Public Defender of

Douglas County, Oregon and Gary Babcock, Public

Defender of the State of Oregon, No. 81-3199 (March

1, 1983).

OPINIONS BELOW

The opinion of the Ninth Circuit Court of Ap-

peals in this matter is reported as Glover v. Tower,

700 F2d 556 (9th Cir. 1983). In its opinion and

ensuing judgment, the Court of Appeals affirmed in

part, reversed in part, and remanded the judgment

of the United States District Court for the District of

Oregon which had dismissed respondent Glover’s

civil rights action for failure to state a claim. The

opinion of the Ninth Circuit Court of Appeals is

attached to this opinion as Appendix A. The unre-

ported order of the United States District Court for

the District of Oregon is attached as Appendix B.

JURISDICTION

The opinion of the Ninth Circuit Court of Ap-

peals was dated and filed on March 1, 1983. The

judgment sought to be reviewed was entered on the

same date. Jurisdiction to review the Court of

2

Appeals judgment in this civil case by writ of

certiorari is conferred upon this Court by 28 U.S.C. §

1254(1). This petition for a writ of certiorari is filed

within the 90-day period prescribed by 28 U.S.C. §

2101(c), as computed in accordance with Rule 20 and

Rule 29(1) of the Rules of the Supreme Court of the

United States.

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

The resolution of the issue presented in this

petition involves the Sixth and Fourteenth Amend-

ments of the United States Constitution and the

federal statute authorizing civil actions for depriva-

tion of rights, 42 U.S.C. § 1983.

United States Constitution, Amendment VI

provides in pertinent part:

“In all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of

Counsel for his defence [sic].”

United States Constitution, Amendment XIV

provides in pertinent part:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State where they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.”

42 U.S.C. § 1983 provides in pertinent part:

3

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State . . . , 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 immunities 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.

ok

* 2”

STATEMENT OF THE CASE

1. Summary of Facts

While he was incarcerated in the Oregon State

Penitentiary, respondent Glover filed an action

under 42 U.S.C. § 1983 against Douglas County

Public Defender Bruce Tower and Oregon State

Public Defender Gary Babcock. (Cr. 3, pp. 1, 2).

Glover’s pro se complaint was made on a form

provided by the United States District Court for the

District of Oregon. (Cr. 3, p. 1). Glover complains of

an alleged “conspiracy by state officials acting under

a color of state authority to deprive [him] of his civil

rights .. .”. (Cr. 3, p. 1). The gist of Glover's

complaint is that his public defenders at trial and on

appeal violated his constitutional rights by conspir-

ing with trial judges, the judges of the Oregon Court

of Appeals, and named and unnamed state adminis-

trative officials to secure and to sustain his convic-

tion on a felony charge brought by the State of

Oregon. (Cr. 10, p. 1).

4

Glover alleges that his trial attorney, petitioner

Tower, a county public defender, conspired with

state trial court judges to deprive Glover of his

liberty by refusing to discharge the responsibilities

and obligations of a court-appointed defense counsel.

(Cr. 3, p. 3). Glover maintains that Tower conspired

with state officials to prevent Glover from present-

ing a defense of mental disease or defect in his

criminal prosecution. (Cr. 3, p. 4). Glover also

claims that Tower participated in a conspiracy to

deprive Glover of his right to defend himself by

refusing to withdraw from the case. (Cr. 3, pp. 4-5).

With regard to the state court appeal of his

criminal conviction, Glover alleges that petitioner

Babcock, the state public defender, deliberately

deprived Glover of a fair and adequate appeal. (Cr.

3, p. 5.). Glover maintains that Babcock refused to

obtain printed portions of the trial record, prepared

an inadequate opening brief, and refused to correct

the brief upon Glover’s request. (Cr. 3, p. 5). Glover

alleges that public defender Babcock, as did public

defender Tower, knowingly and deliberately de-

prived him of his basic civil rights to defend himself

against serious criminal charges pursuant to a

conspiracy. (Cr. 3, pp. 5-6).

Glover also alleges that members of the judicial

and executive branch of Oregon government were

involved in the conspiracy against him. He claims

5

that “state agents” not only persuaded petitioner

Tower to do nothing to prepare for Glover’s defense,

but that they also persuaded trial court judges to

ignore his requests for redress. (Cr. 3, p. 4). Glover

alleges that the Oregon Court of Appeals intention-

ally participated in the conspiracy by accepting the

appellate brief prepared by petitioner Babcock over

Glover’s objections and by refusing to allow Glover

to represent himself during his appeal. (Cr. 3,

Exhibit at 4, 5).

Glover maintains that the purpose of the conspi-

racy was to prevent his disclosure of dishonest

actions by state officials. (Cr. 3, p. 5). He further

alleges that the mastermind of the conspiracy was a

former Oregon Attorney General who, in his capaci-

ty as a court of appeals judge, placed himself on the

panel that reviewed Glover’s criminal appeal. (Cr. 3,

p. 6). In his complaint, Glover prays for no compen-

satory damages; he seeks $5 million in punitive

damages from public defender Tower and the same

amount from public defender Babcock.

A copy of Glover’s complaint is attached as

Appendix C to this petition.

2. Procedural History: Basis of Federal

Jurisdiction

Respondent Glover’s civil complaint under 42

U.S.C. § 1983 and other provisions of the Civil

Rights Act was filed on December 12, 1980. (Cr. 3,

6

p. 1). Pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure, petitioner public defenders Tower

and Babcock moved for dismissal of Glover’s com-

plaint on the ground that it failed to state a claim

upon which relief could be granted. (Cr. 6, p. 1). In

a memorandum supporting their dismissal motion,

Tower and Babcock maintained that Glover's pur-

ported § 1983 action against them should be dis-

missed because, as public defenders, they were

absolutely immune from liability under § 1983 for

acts performed in representing a defendant in a

criminal trial. (Cr. 6, pp. 2-4). Tower and Babcock

expressly relied upon the opinion of the Ninth

Circuit Court of Appeals in Miller v. Barilla, 549

F2d 648, 649 (9th Cir. 1977) in which the court held

“that a public defender should be accorded absolute

immunity from § 1983 damage claims for acts done

in performance of his judicial functions as a public

defender.” (Cr. 6, pp. 2-3).

On April 3, 1981, the United States District

Court for the District of Oregon entered an order

granting petitioners’ motion to dismiss. (Cr. 10, p. 3;

App. B, p. 3). Citing Miller v. Barilla, supra, the

District Court ruled in its unreported order that

“. .. plaintiff has not stated a claim under 42

U.S.C. § 1983 because public defenders are absolute-

ly immune from liability for acts done in the perfor-

mance of their judicial function.” (Cr. 10, p. 2; App.

7

B, p.2). Thereupon, the District Court entered a

judgment dismissing Glover’s action. (Cr. 11).

On April 7, 1981, Glover filed a notice of appeal

pro se. Glover filed a pro se opening brief. After

petitioners Tower and Babcock filed an answering

brief, the Court of Appeals appointed the Northwest-

ern Legal Clinic of the Lewis and Clark College

Northwestern School of Law to represent Glover on

the appeal. The Court of Appeals set a revised

briefing schedule, and counsel for the parties sub-

mitted supplemental briefs which addressed, among

other issues, the question of the immunity of public

defenders from liability for damages under § 1983.

The Ninth Circuit Court of Appeals heard oral

arguments on this issue on December 7, 1982. In an

opinion issued on March 1, 1983, a panel of the

Court of Appeals reversed the portion of the District

Court’s order which had ruled that public defenders

Tower and Babcock were immune from liability

under § 1983. The panel reasoned that its precedent

in Miller v. Barilla, supra, was no longer good law

in light of this Court’s subsequent decision in Fer77

v. Ackerman, 444 US 193 (1979). The Ninth Circuit

panel concluded “that Miller cannot survive the

rationale of Fer7z, and that “Fer7z and Polk County v.

Dodson, [454 US 312 (1981)], are inconsistent in

principle with any immunity qualified or absolute,

of public defenders charged with conspiring with

8

state officials in violation of 42 U.S.C. § 1983.

* * *” Glover v. Tower, supra, 700 F2d at 558, 559.

(App. A, p. 5). ¢

REASONS FOR ALLOWANCE OF WRIT

This case presents an important issue of federal

law which should be settled by this Court. The

question whether public defenders are immune from

liability under 42 U.S.C. § 1983 for their actions in

representing indigent defendants in the course of

criminal prosecutions was left open by this Court in

Polk County v. Dodson, supra, 454 US at 317, n. 4.

The public defender immunity issue is squarely

presented here.! The Ninth Circuit Court of Appeals

incorrectly resolved this issue because it miscon-

strued and misapplied this Court’s discussion in

Ferri v. Ackerman, supra, of the immunity of

appointed private defense counsel from state tort

liability for malpractice. That case is distinguisha-

ble from a case such as this which involves the

liability of appointed public defenders in federal

'The Court found that it need not reach this immunity issue in Polk —

County v. Dodson, because it there held that a public defender does not act

under color of state law when performing the traditional functions of counsel

for a criminal defendant. 454 US at 317, n. 4. The Ninth Circuit Court of

Appeals, however, found that it was necessary to reach the immunity question

in this case because Glover had somewhat vaguely but sufficiently alleged that

public defenders Tower and Babcock conspired with state officials to deprive

him of his constitutional rights. Glover v. Tower, supra, 700 F2d at 558, n. 1.

(App. A, p. 6). Therefore, on the basis of this Court's decision in Dennis v.

Sparks, 449 US 24, 29 (1980), the Court of Appeals concluded :tnat Glover’s

complaint alleged a conspiracy sufficient to satisfy the color of state law

requirement that this Court concluded was not satisfied in Polk County v.

Dodson, supra. Glover v. Tower, supra, 700 F2d at 558, n. 1. (App. A, p. 6).

9

court under 42 USC § 1983. This Court should

resolve the question of public defender immunity

under § 1983 now. The Ninth Circuit decision in

this case is in conflict with the decision of the Court

of Appeals for the Third Circuit on the same issue in

Black v. Bayer, 672 F2d 309 (1982). Review by this

Court is particularly appropriate because, like the

Ninth Circuit, the Court of Appeals for the Eighth

Circuit has misapplied Fer77 in cases involving the

question of immunity of public defenders under §

19832. Moreover, the absence of explanation or

clarification from this Court regarding the scope of

‘its Ferri decision has caused the Fourth Circuit to

doubt the continued viability of the public defender

immunity doctrine established in that circuit’s prior

cases.3 Unless this Court allows review in this case,

other circuit courts which have established the

doctrine of public defender immunity* will face a

similar quandary, as will judicial and administrative

officials with responsibilities for supervising and

managing the numerous state and local public

defender programs across the country.

2 Dodson v. Polk County, 628 F2d 1104, 1107 (8th Cir 1980), reversed on

other grounds, Polk County v. Dodson, 454 US 312 (1981)

3.See Hall v. Quillen, 631 F2d 1154, 1155 (4th Cir 1980), questioning the

continued vitality of Mfinns v. Paul, 542 F2d 899 (4th Cir 1976)

‘See Robinson v. Bergstrom, 579 F2d 401 (7th Cir 1978) See also

Housand v. Heimen, 594 F2d 923 (2d Cir 1979) (per curiam)

10

Discussion

1. The issue of public defender immunity

under § 1983 is an important federal question.

This Court’s holding in Polk County v. Dodson,

supra, that public defenders do not act under color of

state law when providing criminal defense services,

does not completely insulate the practice of the

nation’s public defenders from the deleterious effects

of spurious lawsuits filed under § 1983 by unjustifi-

ably disappointed criminal clients. In the present

case, the Ninth Circuit reached its conclusion that

public defenders were not absolutely immune under

42 U.S.C. § 1983 “with some reluctance” because the

court was “mindful of the burden [its] decision may

place on already overburdened public defenders’

offices. * * *” Glover v. Tower, supra, 700 F2d at

559. (App. A, p. 5). The court evidently realized that

unscrupulous clients of public defenders would

simply avoid the implication of this court’s opinion

in Polk County v. Dodson, supra, by enhancing their

purported § 1983 claims with unfounded allegations

of conspiracies between their public defenders and

various judicial, prosecutorial, and administrative

officials. In order to prevent the paralysis of public

defender decisionmaking and case processing by a

flood of frivolous litigation, this Court should now

11

address the question of public defender immunity

which it left open in Polk County v. Dodson.

2. The Ninth Circuit Court of Appeals erro-

neously applied this Court’s decision in Fer7? v.

Ackerman to this case. The attorney involved in

Ferri, was a private attorney appointed to represent

an indigent criminal defendant in a federal criminal

trial. This Court held that no principle of federal

law required the state to accord such an attorney

absolute immunity from liability in a state malprac-

tice suit brought against the attorney by his former

criminal client. Fer77 v. Ackerman, supra, 444 US at

201, 205. This case does not involve private counsel.

The attorneys whom respondent seeks to sue under §

1983 in this case are public defenders. In jurisdic-

tions which have public defender programs, a

significantly greater proportion of the responsibility

for providing defense services to indigent criminal

defendants is assigned to public defenders rather

than private attorneys appointed on a case-by-case

basis. Large numbers of indigent criminal defen-

dants are assigned to public defenders because,

generally, public defender programs can provide

defense services at a lower cost to the public than

can a private attorney-appointment system. A public

defender system can provide defense services at

lewer cost and with greater efficiency because public

defenders generally are specialists who limit their

12

practice to criminal law ard related matters. The

benefits of maintaining a public defender system

carry a corresponding burden. This burden of

representing a large number of exclusively indigent

criminal defendants distinguishes public defenders

from privately retained attorneys and private

attorneys who occasionally are appointed to repre-

sent criminal defendants.

Although a public defender is not so much a part

of the judicial system that his or her authority to

make legal decisions for an indigent criminal

defendant depends on state law, a public defender,

as the name suggests, serves a public purpose.

Efficient performance of the public defender func-

tion has a quantifiable, beneficial effect on the

criminal justice system. In this particular sense, the

defender’s role, as contrasted with the role of ap-

pointed private counsel discussed in Fer77, is suffi-

ciently “judicial” in nature to warrant the protection

of absolute immunity afforded to other participants

in the criminal justice system. See Pierson v. Ray,

386 US 547 (1967) (judges); Jmbler v. Pachtman, 424

US 409 (1976) (prosecutors); Briscoe v. Lahue, __

US __ , 103 SCt 1108 (1983) (witnesses).

The Ninth Circuit’s opinion in this case also fails

to recognize that unlike Fer7z, this case involves

allegations of liability under federal law, to be

adjudicated in federal court. In Ferri, this Court

13

emphasized that it was concerned only with the

extent to which federal law required the states to

accord immunity in state proceedings. The Court

noted:

“The narrow issue presented to this Court is

whether federal law in any way pre-empts the

freedom of a state to decide the question of

immunity in this situation in accord with its own

law. We are not concerned with the elements of a

state cause of action for malpractice and need not

speculate about whether a state court would

consider petitioner’s allegations to establish a

breach of duty or a right to recover damages. Nor

are we concerned with the question whether

Pennsylvania may conclude as a matter of state

law that respondent is absolutely immune. For

when state law creates a cause of action, the

state is free to define the defenses to that claim,

including the defense of immunity, unless of

course, the state rule is in conflict with the

federal rule.” 444 US at 197-198 (footnotes

omitted).

Ferri v. Ackerman did not deal with the scope of

the federal cause of action under 42 U.S.C. § 1983 or

the extent to which it is limited in this context by

federal immunity principles. Fer7t addressed only

the issue of federal preemption. This case presents

the quite different issue of whether § 1983 provides

a federal jurisdictional base for disgruntled indigent

criminal offenders to sue their public defenders for

malpractice. The Ninth Circuit discarded its own

established, well-reasoned rejection of such a federal

cause of action in reluctant deference to a decision of

this Court which is not on point.

14

The Court should take the opportunity presented

by this case to correct past misapplications of Ferr7

and to forestall future misapplications of that case

in the context of cases presenting the issue of public

defender immunity under § 1983.

3. The approach taken by the Court of

Appeals for the Third Circuit in Black v. Bayer,

supra, is correct. In the wake of this Court’s

decisions in Ferri v. Ackerman and Polk County v.

Dodson, the Third Circuit Court of Appeals reaf-

firmed its long-standing rule that public defenders,

acting within the scope of their professional duties,

are absolutely immune from civil liability under §

1983. Black v. Bayer, supra, 672 F2d at 320. The

court reached this conclusion after evaluating a

number of policy factors. The court concluded that

denial of absolute immunity to a public defender

under § 1983 would discourage recruitment of new

defenders and conceivably would encourage retire-

ment by experienced public defenders. 672 F2d at

318-319, citing Brown v. Joseph, 463 F2d 1046, 1049

(3rd Cir. 1972). The court also noted that exposure

of public defenders to § 1983 liability would inter-

fere with the speedy and efficient performance of

the defender’s function. 672 F2d at 319. The Third

Circuit has correctly resolved the issue present here.

Public defender programs have been instituted

across this country in direct response to this Court’s

15

decisions recognizing the Sixth Amendment right of

indigent criminal defendants to court-appointed

counsel. In 1961, two years prior to Gideon v.

Wainwright, 372 US 335 (1963), public defender

programs served only 3 percent of the nation’s

counties and approximately one-fourth of the na-

tion’s population. One year after Agersinger v.

Hamlin, 407 US 25 (1972), public defender programs

had been implemented in 28 percent of the nation’s

counties, to serve two-thirds of the population.

Mounts, Public Defender Programs, Professional

Responsibility, and Competent Representation, 1982

Wis. L. Rev. 473, 481 n. 40; L. Benner & B. Neary,

The Other Face of Justice 72 (1973). Public defender

programs were created as a result of the tremendous

increase in demand for proficient criminal defense

attorneys and the recognition that some compensa-

tion of counsel would be required for adequate

representation, that adequate criminal representa-

tion was not solely the gratuitous responsibility of

the local bar, and that the community responsibility

for providing defense services to indigents must be

discharged with limited government resources.

Mounts, supra, 1982 Wis. L. Rev. at 479-481.

Although public defenders owe definite allegiance

to their individual clients, it also is evident that

public defenders necessarily are subjected to signifi-

cant and various additional pressures which require

16

difficult policy choices with respect to the represen-

tation of their clients. Faced with large case loads

and limited resources, public defenders must make

difficult decisions regarding allocation of limited

time and resources with the objective of serving each

client’s needs as fully as possible. Unlike their

clients, public defenders must be concerned with the

serious difficulties of many criminal defendants and

must have a commitment to the overall fairness of

the criminal justice system which is as strong as

their commitment to each client. It is therefore not

surprising that many indigent criminal defendants

come away from the adjudicative process with the

mistaken belief that their public defenders do not

care about them or even are conspiring for their

criminal convictions.

In /mbler v. Pachtman, supra, 424 US at 422-423,

this Court recognized that the doctrine of prosecuto-

rial immunity was grounded in part upon “concern

that harassment by unfounded litigation would

cause a deflection of the prosecutor’s energies from

his public duties, and the possibility that he would

shade his decisions instead of exercising the inde-

pendence of judgment required by his public trust.

“7 ™ The same considerations apply with respect

to public defenders.

Public defenders must exercise their independent

professional judgment where conflicting interests

iZ

are at stake. To permit § 1983 lawsuits to be main-

tained against public defenders not only would

impede the exercise of their independent judgment,

it also would detract from their ability to perform

their public duty. Defense of § 1983 lawsuits would

divert their attention from performance of their

criminal defense function. Although it is likely that

only a very few pro se § 1983 lawsuits ever would be

successful, the lawsuits themselves would require

the public defender to devote time and energy away

from the public function he or she should be per-

forming. Any spurious § 1983 lawsuit which results

in a less of a public defender’s time for providing

defense services disserves the public interest in

providing adequate criminal legal representation to

the poor.

As noted by the Third Circuit, this Court, in Polk

County v. Dodson, recognized the important policy

considerations that have prompted lower courts to

grant absolute immunity to public defenders.5 This

Court should grant review in this Ninth Circuit case

in order to resolve the conflict among the circuits on

the question of public defender immunity under §

‘The Third Circuit drew this conclusion from the following statement in

Polk County v Dodson, 454 US 312, 324, n. 17:

"* * * Our adversary system functions best when a lawyer enjoys the

wholehearted confidence of his client. But confidence will not be improved

by creating a disincentive for the states to provide post-conviction

assistance to indigent prisoners. To impose § 1983 liability for a lawyer’s

performance of traditional functions as counsel to a criminal defendant

would have precisely that effect.”

18

1983. The Court should resolve the conflict by

adopting and refining the rule and rationale of the

Third Circuit in Black v. Bayer.

CONCLUSION

The Ninth Circuit Court of Appeals misinterpret-

ed 42 U.S.C. § 1983 and this Court’s recent decisions

when it resolved the issue presented in this case.

The significance of the issue of public defender

immunity under § 1983 transcends this particular

case. For all of the reasons discussed above, this

petition for a writ of certiorari to the United States

Court of Appeals for the Ninth Circuit should be

granted.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

WILLIAM F. GARY

Solicitor General

JAMES E. MOUNTAIN, JR.

Deputy Solicitor General

Counsel for Petitioners

25

26

19

Appendix A

For Publication FILED

MAR 1 jz:

IN THE UNITED STATES CUURT OF APPEALS

PHILLIP B. WINBERRY

FOR THE NINTH CIRCUIT LSWKUS =9URT CF APrEAS

BILLY IRL GLOVER, )

Plaintiff-Appellant, )

CA No. 61-3]99

vs. ) OC No. CV 80-6720

BRUCE TOWER, Public Defender of Douglas) UP INION

County, Oregon and GARY BABCOCK, Public

befenoer of the State of Oregon, )

Defendants-Appellees. )

Appeal from the United States District Court

for the District of Oregon

Honorable Robert C. Belloni, District Juoge, Presiding

Argued and Submitted December 7, 1982

Before: GOODWIN, PREGERSON and CANBY, Circuit Judges

CANBY, Circuit Judge:

Glover appeals the district court's dismissal of his civil

rights action. The complaint, which was filed by Glover pro se,

alleged that the public defenders who represented him in a prior

State criminal action violated the provisions of 42 U.S.C. §§ 19A1,

1982, 1983 and 1985(3) by conspiring with various public officials

to violate nis constitutional rights. -The district court held that

Glover nao failed to state a claim upon which relief coula be

Qranted and dismissed his action.

Glover alleged that nis public defenders at trial and on

appeal violated his constitutional rights by conspiring with the

trial judge, the Oregon Court of Appeals and other named and

w

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unnamed state officials to secure his conviction on a felony charoe

Drougnt by the State of Oregon. te allegeco that cefencant Tower

intentionally failed to obtain evigence to support his cefense of

mental defect and refused to witnhcraw as counsel to allow Glover to

represent himself. He further alleged the existence of a

conspiracy between Tower ang the trial jJucge to secure his

conviction. In furtherance of tnat conspiracy, the trial jucdce

allegedly denied Glover's motions for new counsel! ang for a new

S allegec to have participaten

wy

trial. The Oregon Court of Appeals

in the conspiracy by accepting defendant Gabcock'’s appellate brief

over Glover's objections and by refusing to allow Glover to

represent nimself during the appeal.

Glover also alleged that Badcock, as public Cefencer

aoministrator, appointed himself to represent Glover on appeal to

insure that nis conviction would be uphelc. Similarly, he alleged

that Judge Lee Jonnson hac nimself placed on the pane] which was to

near Glover's appeal to insure that nis conviction would be

torney general at the time of

affirmed. Jucge Johnson nad been at

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Glover's trial anc was namec to the Oregon

the interim.

The district court held that Glover nao failed

anything in the nature of racial discrimination, necessary for

section 1981 anc 1982 claims, or the type of class-based

Giscrimination necessary for a section 1985(3) claim. No extended

Giscussion of these holdings is required. The

correct and that portion of its judgment is affirmea. ee London

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v. Coopers & Lybrand, 644 F.2d 81], 818 n.4@ (9th Cir. 1981);

Griffin v. Breckenridge, 403 U.S. 88 (1971). Glover's contention

on appeal that he was treated less favorably as an indigent than he

would have been had he been affluent enough to retain his own

lawyer does not, in our view, make out a proper class-based 1985(3)

Claim.

The district court also held that Glover's remaining claim

under section 1983 failed to state a cause of action because public

Gefenders are absolutely immune from suit under section 1983. That

portion of the court's ruling was error and we reverse.

In Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977), this

court adopted the rationale of Minns v. Paul, 542 F.20 899 (ath

Cir.), cert. oenied, 429 U.S. 1102 (1976), and announced a rule of

absolute immunity for public defenders under section 1983. we

reasoned that absolute immunity would encourage able lawyers to

represent indigents and encourage counsel in “the full exercise of

professionalism s7 Miizer v. Saeriiis., $a9 F.20 et 64d

(quoting Minns v. Paul, 542 F.20 at 901). we concluded that there

was no valid reason to treat public defenoers differently from

prosecutors and judges in this regard.

Tne district court understandably felt itself bound by

Miller.2/ Our review of a subsequent Supreme Court case, Ferri

v. Ackerman, 444 U.S. 193 (1979), nas convinced us that Miller is

no longer goood Jaw. In Ferri, tne Court held that an attorney

appointed to represent an indigent criminal defendant in a federal

as a matter of federal law, to

prosecution was not entitled ,

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absolute immunity in a subsequent state malpractice action. Ihe

Court explained that appointed counsel are subject to the same

Guties and obligations as retained counsel. The Court

GCistinguisnhed tne public defenger frum a judge or prosecutor,

moting that the latter serve broad societal interests and are

Subject to conflicting claims. Immunity is necessary to forestall)

an atmosphere of intimidation, ang to insure that they have maximur

ability to deal fearlessly with the public. In contrast, the

public defender is obligated to serve tne undivided interest of his

Client. See Sellars v. Procunier, 641 F.2¢ A293, 1299 W.7 09th

Cir.), cert. denied, 102 S.Ct. 678 (1981); see also Polk County v.

Lodson, aS. » 102 S.Ct. 445 (1981)(public defencer is the

functional equivalent of a Privately retainec attorney).

Ferri did not actually overrule Miller because the issue

Presented was limited to federal preemption of state law governing

immunity in malpractice actions. See Black v. Bayer, 672 F.2d 309

(30 Cir. 1982)(reaffirming rule of absolute immunity for public

Gefenders). Nonetheless, the Ferri Court's refusal to extend the

immunity accorded judges and prosecutors to appointed counsel

undercuts the basis for Miller. See Hall v. Quillen, 631 F.20 11)5a

(ath Cir. 1980)(Ferri casts considerable doubt on the continuina

valicity of Minns), cert. denied, 102 S.Ct. 999 (1982); white v.

Bloom, 621 F.2d 276, 280 (8th Cir. 1980)(public defenders subject

to suit under section 1983), cert. denied, 449 U.S. 995 (1980), 449

U.S. 1089 (1981).

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we conclude that Miller cannot survive the rationale of

Ferri, ano that Ferri and Polk County v. Dodson, supra, are

inconsistent in principle with any immunity, qualified or absolute,

of public defenders charged with conspiring with state officials in

violation of 42 U.S.C. § 1983. we reach this conclusion with some

reluctance, dDecause we are mindful of the burden our decision may

place on already-overburdened public defencers' offices.

Nevertheless, we can construe Ferri and Polk County mo other way.

AFFIRMED {in part, REVERSED in part and REMANDED.

ae

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Footnotes

1. The district court did not address the preliminary issue of

whether Glover alleged that defendants acted uncer color of state

law. "(A) public defender coes not act uncer color of state law

when performing a lawyer's traditional functions as counsel] to a

defendant in a criminal proceeding.” Polk County v. Dodson,

U.S. __, 102 S.Ct. 445, 453 (1981). Thus a suit alleging

constitutional violations on the part of a public cefencer acting

alone would not state a claim under section 1983. In this case,

however, Glover alleged that the public cefenders conspired with

state officials. Private parties who conspire with a state

official acting in his official capacity do act under color of

state law. Dennis v. Sparks, 449 U.S. 24, 29 (1980). In Sparks,

the Court held that a complaint which alleged a conspiracy between

a state judge and two private defendants to cause an injunction to

be corruptly issued, satisfied the color of state law requirement.

Glover's allegations of conspiracy were somewhat vague. On remand

the district court may require more specificity, but at this staqe

we are satisfied that Glover's allegations of color of state law

are not fatally ceficient on their face.

abe

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BILLY IRL GLOVER,

Plaintiff, Civil No. 80-6720-E

Vv. ORDER

BRUCE TOWER, and

GARY BABCOCK;

Defendants.

Billy Irl Glover, plaintiff, brings this civil rights

action pursuant to 42 U.S.C. 1981, 1982, 1983 and 1985(3),

alleging that his public defenders at trial and on appeal

inadequately represented him, and conspired with the trial

judge and other unnamed officials to secure his conviction

of a felony. Plaintiff is presently incarcerated in the

Oregon State Penitentiary.

Defendants deny that plaintiff has stated a claim for

relief, and move for dismissal.

Plaintiff has not stated a claim under 42 U.S.C. § 1981

or 1982 because he has not alleged a racially-motivated

deprivation of rights or property. Des Vergnes v.

Seekonk Water District, 601 F.2d 9 (lst Cir. 1979); Jones v.

Mayer, 392 U.S. 409 (1968).

Plaintiff has not stated a claim under 42 U.S.C. § 1985(3)

because he has not alleged that the conspiracy was founded

upon “some racial, or perhaps otherwise class-based,

invidiously discriminatory animus.” Griffin v. Breckenridge,

l-Order / 0

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403 U.S. 88, 102 (1971).

Finally, plaintiff has not stated a claim under 42

U.S.C. § 1983 because public defenders are absolutely immune

from liability for acts done in the performance of their

judicial function. Miller v. Barilla, 549 F.2d 648 (9th

Cir. 1977); Housand v. Heiman, 594 F.2d 923 (2nd Cir. 1979).

Plaintiff contends that defendants were acting outside

the scope of their immunity when they conspired to secure

his conviction. As evidence of this conspiracy, he claims

that defendants failed to obtain certain evidence and witnesseg

to support his defense of mental defect or disease, and

refused to withdraw as counsel, in order to allow plaintiff

to represent himself. Plaintiff further alleges that the

trial judge aided in the conspiracy by refusing to grant his

motions for appointment of new counsel and for a new trial.

The appellate court allegedly participated in the conspiracy

by accepting defendant Babcock's brief, and by refusing to

allow plaintiff to represent himself.

Plaintiff's claim fails to allege any actions by

defendants which lie outside the scope of their judicial

function. For purposes of 42 U.S.C. § 1983, public defenders

have “unfettered discretion" in their decisions regarding

the introduction of evidence, the presentation of witnesses,

1

and the submission of motions. Therefore, plaintiff's

allegations do not strip defendants of their absolute

immunity.

l/ Miller v. Barilla, 549 F.2d at 649; Housand v.

Heiman, 594 F.2d at 924-925.

\

2-Order

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1]

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Defendants' motion to dismiss is granted and this pro-

ceeding is dismissed. The Clerk is directed to enter

judgment accordingly. : "

lk suf?

DATED this /“€ day of Mereh, 1981.

vs . Co, nn

3-Order

Appendix C

THE ORIGIMAC COPY

i1¥,19 Glover Form To BE USED BY A PRISONER IN FILING A COMPLAINT

sy» 47832

‘0G Stele Streit UNDER THE CIVIL RIGIITS ACT, 42 U.S.C. §1983

lem, Oregon 97310

1 PRO PER In the United States District Court

For_the District of Oregon

BIJLY IRL CLOVER, Plaintirr TRICT

{Enter above the full name of Bi RETOF OREO

the plaintiff in this ection.) FILED

. COMPLAINT DEC 12 1980

: Civil No.

BRUCE TOWER, Douglas County Public Defender ROBERT M. CHRIST, CLERK

GARY BABC(CK, Orepon Stute Public Defender “ Pury

Defi nitonts $0 -61 2O-E

lEnter above the full name of the

defendant or deiendancs in this

action, ] ACTION UNDER TITLE 42 U.S.C. 1983, 1981, 1982 & 1985 (3) & related statutes

governing CONSPIRACY BY STATE OFFICIALS ACTING UNDcR COLOR OF STATE AUTHORITY

TO DEPRIVE PLAINTIFF OF HIS CIVIL RIGHTS AS OUTLINED HEREIN,

I. Previous Lawsuits

Have you begun other lawsuits in state or federal court dealing

with the same facts involved in this action or othervise relat-

ing to your inprisonvent? Yes | ) Ko [x]

BUT THERE I3 A RELATED CASE PRESENTLY BEING LITIGATED (Your File # 80-6371-E)

B. If your answer to A is yes, describe the Tasuie i the space

below. [If there is nove than one lawsuit, describe the addi-

tional lawsuits on another piece of paper, using the sane

outline.)

A.

1. Parties to this previous lawsuit

Plaintiffs N/h

Defendants N/b

2. Court [if federal court, name the district;

if state court, name the county]

N/A

3. Docket number "/A

n/a

4. Name of judge to whom case was assigned

5. Disposition [for example: Was the case dismissed? Was

it appealed? Is it still pending?)

Pare 1 his

N/A

Il.

II.

30

6. Approximate date of filing lawsuit "/4

N/A

7. Approximate date of disposition

Place of Present Confinement GQ! STATE PENITENTIARY

A. Is there a prisoner grievance procedure in this institution?

Yes PX) No [ )

B. Did you present the facts relating to your complaint in the

state prisoner grievance procedure? Yes [ } No PX)

C. If your answer is YES,

1. What steps did you take? N/A

2. What was the result? K/As

D. If your answer is NO, explain why not This is NCT a prisoner prievance

type suit but a suit arainst other officials acting under state authority.

E. If there is no prison grievance procedure in the institution,

did you complain to prison authorities? oYeerkokwaxextsxk

N/A

F. If your answer is YES,

1. What steps did you take? w/t

2. What was the result? "/A

Perties

[In item A below, place your name in the first blank and place

your present address in the second blank. Do the same for

additional plaintiffs, if any.]

A. Name of Plaintiff BIILY IRL CLOVER

Address 3OX 42831, 2605 State Street, Selcm, Cregon 97310

[In iten B below, place the full name of the defendant in the first

blark, his official position in the second blank, and his ploce of

employment in the third blank. Use item C for the names, positions,

and places of employment of any additional defendants. }

Pace 2

31

oet LP) “Ty UAL

B. Defendane BUCS TUR is employed ag COUNTY IUALIC

De FENDER at DOUGIAS COUNTY CIRCUIT COuRT, £ COURTHOUSE,

ROSEBERG, OREGOH

Additional Defendants GARY BABCOCK who is employed as the Crepon Strte

Public Defender, 1655 Stafe Strect, Salen, Uregon J7310

IV. Statement of Claim

[State here as briefly as possible the facts of your case.

Describe how each defendant is involved. Include also the names

of other persons involved, dates, and places. Do not give any

legal arguments or cite any cases or statutes. If you intend

to allcge a number of related claims, number and set forth each

claim in a separate paragraph. Use as much Space as you need,

Attach extra sheet if neccssary.)

Bruce Tower, acting as @ representative of the Stete of Oregon in the capacity of

the Dougins County wublic BD fender conspired with other state efficials - = Including

the trial court judges of Charles Woodrich and Robert Stults, who are unnared

defendants in this action since judges ore iamune fron damares even thuch done

with malice an forettought - - to deprive your plaintiff of his liberty by refusing

to discherre his responsibilities end oblipetions as court enjointed counsel for

your plaintiff in the Douglas County Circuit Court case No. 76-0386.

(SEE ADDITIONAL INFORMATION IN THE ATTACHED SUPPLEMENT TITLED "IV Statement of Clair.”

V. Relief

[State briefly exactly what you want the court to do for vou.

Nake no legal arguments. Cite no cases or statutes. |]

From defendent. Bruce Tower plaintiff asks the court to award Pponative damares

in the amount of $5 million.

Fron defendant Cary Babcock plaintill asks the court to avard Purative deinpes

in the amount of $5 million.

Signed this ck day ot OCTOber- , 197°.

ill, ph Br»

(Signature of Plaintiff]

1 declare under penalty of perjury that the foregoing is true and

| Misi fil, ph M4

[Date] (Signature of Plaintitt)

Cortijied A Truce Coy-4

Page 3

32

IV). Statement of Claim (Contd. from poy 3)

This is more then ea mal-practice shtution by defendant Bruce Tower as hoe

conspired with end acted in unison with other state officials to prevent your

plaintiff from mustering, preserving end presenting his defense in a criminal

case in Douglas County (Circuit Court No. 76-0386),

In the criminal case referred to the defense proffered wes THE AFFIRMATIVE

DEFENSE OF MENTAL DEFECT OR DISEASE WHICH DIMINISHED OR NEGATED CRIMINAL RESPCSI-

BILITY.

There wes ample evidence of the validity of this defense available to defendant

Bruce Tower. During the entire six months defendant Tower had to prepere for the

trial in the Circuit Court for Douglas County your plaintiff insisted on and pleaded

with defendant Tower to search out and investigote the defense and to secure evidence

that was needed; contact witnesses pertinent to the case; secure past psychiatric

reports; and to othervise research and prepare the defense.

However, state agents pursuaded defendant Tower to do nothing to prepare for

the defense so that there would be a guaranteed conviction of your plaintiff. These

same state agents pursuaded the trial court Judges of Charles Woodrich and Robert

Stults to ignore your plaintiff's every request for redress in the Douglas County

Circuit Court so that these serious Constitutional errors could be corrected and

your plaintiff could defend himself acainst those chargrs.

The reason these other state agents got involved in this criminal case was

because your plaintiff needed cortein documents from those stete agents and their

agencies (COMPARE FIIE # 80 - 6371-E for the background setting for this case).

For the background information as to the manner in which defendant Tower cerried

out this conspiracy to deprive your plaintiff of his basic rights to defend himself,

the Court is referred to exhibit #1 attached which gives a rather thorough account of

how this conspiracy wae carried out.

Pace 4

33

Once the attached exhibit #1 is studied it becores evident that defendant

Tower NEVER INTENDED TO ALLOW YOUR PLAINTIFF TO DEFEND HIMSELF AND THE RECORD

WILL SHOW ALSO THAT HE REFUSED TO TAKY HIMSELF OFF THE CASE TCO ONCE IT ‘WAS

CLEARLY POINTED OUT THAT HE WAS TOTALLY DERELICT IN HIS RESPONSIBILITIES.

As for the involvement of the second defendant, Mr. Gary Bebcocr, Ore con

State Public Defender, he too was enlisted by those other state agents to make

certain your pleintiff DID NOT GET THE CHANCE TO CONTEST THE ILLEGAL CCWVICTICN

FCRCED ON HIM BY THE TRIAL COURT.

Defendant Babcock was fully informed of the issues asserted by your Plaintif’

in pro per at the trial court lever and edditionally informed as to where these

issues could be found in the trial court record. But, he refused to obtain the

pertinent portions of the triel court record and prepared an opening brief which

was incomplete, inadequate and in error. When your petitioner rejected this opening

brief and asked defendant Babcock to update it end mke it adequete and correct,

Hr. Babcock refused. This was a deliberate and knowing and informed decision to

deprive your plaintiff of a frir and adequate appeal so that your plaintiff vould

be deprived of his liberty for a long extended time without due process of law and

so that your plaintiff would once again be thrust unier the euthority of and at the

direct mercy of former prison officiala who hed ceused your plaintiff's emotional

and psychotic break lcading to the criminal charges in Douglas County.

«ince your Plaintiff was en indigent all these state officiels felt free tc

enlist these two defendands (Tower and Bebcock) to conspire with them to deprive

your petitioner of his basic rights and his liberty so that those state officials

who had previously proved themselves dishonest could once again have total power and

control over your plaintiff. These state officials knew thet if your plaintiff vere

allowed to defend himself their former dishonest actions would become public know

Page 5

34

ledgw and could ceuse repurcussions.

This conspiracy went so far that whcn the case was finally heard by the

Court of Appeals (BASED SOLELY OK THE TOTALLY INADEQUATE, INCOMPLETE AND ERRONBOUS

OPENING BRIEF FILED BY THE DEFENDANT BABCOCK) Mr. Lee Johnson, former Attorney

Generel for Oregon who mastermined the conspiracy set forth in your file # 80-6371-E

Placed himself on the court that "reviewed" plaintiff's appeal.

It should be pointed out that there is no way either defendant Tower or

defendant Babcock can appear in court and defend their actions in this criminal

case from Douglas County (File # 76-0386). Once the trial record is read and the

communicetions to and from defendant Babcock concerning the appeal are reviewed

then the conspiracy becomes evident. They both KNOWINGLY and deliberately deprived

your plaintiff of his basic civil ripits to defend himself against serious criminal

charges knowing that no state court would call them to task.

Therefore, your pleintiif's only redress is through civil action vie a Title

42 U.S.C. 1983. Your plaintiff has already demonstrated thet the state courts will

not give him redress,

Again your plaintiff refers this Honorable Court to the sister case of 80-637)-E

together with the attached Exhibit #1 for proof of this conspiracy by state officials

who used these two nemed defendant state officials (Bruce Tower and Gary Babcock )

to execute their conspiracy against this plaintiff.

Rll, ph _ >

Billy #1 Glover, Plaintirr \

(Under Penalty of Perjury)

Contified 4 apd Cop

wil ini—

ig