Reply Brief — Colorado v. Auld

ad FEB? 1992

No. 91-841

= Liste oe iE CLERK

In The

Supreme Court of the United States

October Term, 1991

e =

THE STATE OF COLORADO,

Petitioner,

vs.

ROBIN AULD,

Respondent.

}

Petition For Writ Of Certiorari To The

Colorado Court Of Appeals

No. 89CA0995

+

REPLY TO BRIEF IN OPPOSITION TO CERTIORARI

+

Mitton K. BLaKkey*

District Attorney

- KeitH Cross

Assistant District Attorney

Special Prosecutors

Attorneys for Petitioner

109 8th Street, Suite 308

Glenwood Springs, Colorado 81601

Telephone: (303) 945-8635

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

ARGUMENT

TABLE OF CONTENTS

EI cr ac asy cee p ene sp htee east eceeeeeecas 3

ii

TABLE OF AUTHORITIES

Page

Cases

Bailey v. People, 630 P. 2d 1062 (Colo. 1981) .......... 2

Dreyer 0. Tiimais, 167 US. 71 GAGE 6s cnc cscccacvecees 3

Highlands Farm Dairy v. Agnew, 300 U.S. 608 (1937) ..... 3

International Brotherhood v. Hanke, 339 U.S. 470

CR hitn son's one wce ce’edelt aie oe ee ee 3

May v. Supreme Court of State of Colorado, 374 F.

Supp. 1210 (D. Colo.), aff’d., 508 F. 2d 136 (10th

Cir. 1974), cert. denied, 422 U.S. 1008 (1975)....... 3

Michigan v. Long, 463 U.S. 1032 (1983).............. i, 2

People in Interest of M.N., 761 P. 2d 1124 (Colo.

POEs ck osctecebbsare es eee tc eanae enue 2

Sweezy v. New Hampshire, 354 U.S. 234 (1957)......... 3

United States v. Omni International Corp., 634 F.

sup. S418 GD. BR. Tia ass cee eer ace 2

United States v. Russell, 411 U.S. 423 (1973)...... ) ee

ARGUMENT

Respondent, in his Brief in Opposition, essentially

presents two objections to the Court’s issuing a Writ of

Certiorari: (1) that the issues raised in the Petition were

not preserved, and (2) that the issues raised were decided

on the basis of the Colorado Constitution. Even a cursory

reading of the opinion of the Colorado Court of Appeals

in this case demonstrates that the issues raised in the

Petition were addressed and decided by that court. Addi-

tionally, the ruling of the Court of Appeals is not

expressly (or even impliedly) an application of state con-

stitutional law. Thus, this Court’s decision in Michigan v.

Long, 463 U.S. 1032 (1983), is dispositive of the Respon-

dent’s jurisdictional objection.

In his brief, the Respondent confuses due process

arguments concerning entrapment and attorney-client

privilege, which were rejected by the trial court and not

the subject of the appeal, with the outrageous govern-

mental misconduct/due process issue decided by the

Court of Appeals in this case. To further support his

“failure to preserve” argument, the Respondent would

have this Court view the Court of Appeals’ decision as

some sort of state court disciplinary procedure. This was

a criminal case, not a disciplinary proceeding. As indi-

cated in the Petition, there were independent disciplinary

proceedings taken by the Colorado Supreme Court aris-

ing from the facts of this case. In its opinion below, the

Colorado Court of Appeals expressly relies upon the

outrageous governmental misconduct/due process doc-

trine established by this Court in United States v. Russell,

411 U.S. 423 (1973). (See Pet. App. 3-4.)

Respondent cites state court powers and the state

constitution numerous times in his brief. However, the

Colorado Court of Appeals makes no mention of state

court powers or the state constitution anywhere in its

opinion.

In Michigan v. Long, 463 U.S. 1032 (1983), this Court

made clear that state court decisions which appear to rely

primarily on federal law will be presumed not to have

independent state grounds, absent an express indication

that the federal cases cited are being used merely for the

purpose of guidance and do not themselves compel the

result. This Court made the following statement:

“Accordingly, when, as in this case, a state court decision

fairly appears to rest primarily on federal law, or to be

interwoven with the federal law, and when the adequacy

and independence of any possible state law grounds is

not clear from the face of the opinion, we will accept as

the most reasonable explanation that the state court

decided the case the way it did because it believed that

federal law required it to do so.” Michigan v. Long, 463

U.S. 1040-1041.

As previdusly noted, the Colorado Court of Appeals,

from the outset, bases its opinion on the outrageous

governmental misconduct/fundamental fairness doctrine

of United States v. Russell, 411 U.S. 423 (1973). The Court

of Appeals goes on to state that this doctrine has been

recognized and discussed in two Colorado cases, Bailey v.

People, 630 P. 2d 1062 (Colo. 1981) and People in Interest of —

M.N., 761 P. 2d 1124 (Colo. 1988). Both the Colorado

Court of Appeals and the trial court cite, as additional

authority, the case of United States v. Omni International

Corp., 634 F. Supp. 1414 (D. Md. 1986). The Colorado

Constitution is not mentioned in either the district court’s

or the appellate court’s decision, and nowhere does the

Court of Appeals even suggest that its holding rests upon

state grounds.

In support of his independent state grounds argu-

ment, the Respondent has cited a number of cases, all of

which are inapposite. Dreyer v. Illinois, 187 U.S. 71 (1902),

Sweezy v. New Hampshire, 354 U.S. 234 (1957), and High-

lands Farm Dairy v. Agnew, 300 U.S. 608 (1937), all

involved state statutes which allegedly shifted the

powers of one branch of state government to another.

May v. Supreme Court of State of Colorado, 374 F. Supp. 1210

(D. Colo.), aff’d., 508 F. 2d 136 (10th Cir. 1974), involved a

state supreme court rule which required attorneys to pay

registration fees. International Brotherhood v. Hanke, 339

U.S. 470 (1950) involved the review of a Washington

Supreme Court ruling which was expressly based upon

questions of state policy. All of these cases involved mat-

ters exclusively of state concern.

.

¢

CONCLUSION

The Respondent’s argument that this case was

decided upon “uniquely state constitutional doctrines” is

simply not supported by the opinion itself. As written,

the Colorado Court of Appeals opinion misapplies this

Court’s decision in United States v. Russell, 411 U.S. 423

(1973). The Respondent’s argument that this case is

“fact-bound” and will not impact other prosecutions is, at

best, inaccurate, and, at worst, disingenuous. This case

has been and will continue to be cited for the proposition

that a court may dismiss a criminal prosecution upon a

showing of outrageous governmental misconduct wholly

unrelated to any constitutionally protected right of the

defendant. Accordingly, the Petitioner respectfully

requests that this Court issue a Writ of Certiorari.

Respectfully submitted,

MILTON K. BLAKEY*

District Attorney

Keith Cross

Assistant District Attorney

Special Prosecutors

Attorneys for Petitioner

109 8th Street, Suite 308

Glenwood Springs, Colorado 81601

Telephone: (303) 945-8635

*Counsel of Record