Opposition Brief — Michaels v. McGrath

meget Court, vs |

| BIDED

DCT 26 2000

No. 00-361

IN THE

Supreme Court of the United States

MARGARET K. MICHAELS,

Petitioner,

v.

GEORGE McGRATH, et? al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

——

BRIEF IN OPPOSITION FOR RESPONDENT

SARA SENCER-McARDLE

JACQUELINE A. DEGREGORIO

Counsel of Record

ADAM KENNY

WEINER LESNIAK

Attorneys for Respondent

Sara Sencer-McArdle

629 Parsippany Road

Parsippany, New Jersey 07054

(973) 403-1100

163048 @) Counsel Press LLC .

(800) 274-3321 + (800) 359-6859

meee re ay ay

TABLE OF CONTENTS

Teese OF Cree AMEROTIIGS 2... ccc cc ccc ccccens

Reasons for Denying the Writ .................

Michaels Has Failed To Set Forth A Com-

pelling Reason For Granting Her Petition For

A Writ Of Certiorari. Her Petition, Therefore,

ee eee eee

A.

Conclusion

The Court Of Appeals’ Decision Was

Consistent With This Court’s Decision

In Jmbler v. Pachtman And More Than

Twenty-Five Years Of United States

Supreme Court Precedent. For Reasons

Of “Stare Decisis”, Michaels’ Petition

For A Writ Of Certiorari Must Be

RE ne

There Is No Inconsistency Between The

Courts Of Appeals That Needs To Be

Addressed By This Court. Thus

Michaels’ Petition For A Writ Of

Certiorari Must Be Denied. .........

Michaels’ Claim That Certiorari Is

Necessary Here To Ensure That She Has

The Right To § 1983 Redress Is

Absolutely Without Merit And Must Be

Rejected By This Court. ............

ee

23

29

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Assaf v. Fields, 178 F.3d 170 (34 Cir. 1999) ...... 17

Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct.

2606, 125 L. Ed. 2d 209 (1993) . sgeeeees 9, 10, 24, 25

Buckley v. Fitzsimmons, 20 F.3d 789 (7® Cir. 1994),

cert. denied, 513 U.S. 1085, 115 S. Ct. 740, 130

L. Ed. 2d 642 (1995) ......... 3, 4, 12, 13, 14, 15, 16

Clanton v. Cooper, 129 F.3d 1147 (10 Cir. 1997)

TT Titi ..”..!.tti<‘i‘OSOS™S™S~S~SCSSS! passim

Giuffre v. Bissell, 31 F.3d 1241 (34 Cir. 1994) ....11, 26

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727,

73 L. 84. 26 SRG CIGD 0 0 ks eeeneeeeee ... 18, 20

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

47 L. Ed. 2d 128 (1976) ......eccceeccecees passim

Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502,

139 L. Ed. 2d 471 (1997) ........ 4,5, 6, 8, 9, 12, 25

Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092,

09 L. BG. 6 CURED « 0:00080e00ennneneeeee 18

Michaels v. New Jersey, 50 F. Supp. 2d 353 (D.N.J.

IDDD) .vcccccsvessesenseeeenennne 18, 21, 22, 27

ul

Cited Authorities

Page

Michaels v. State of New Jersey, et al., No. 99-5486

Ne ng cc cecceccecece 17, 28

Mitchell v. Forsyth, 672 U.S. 511, 105 S. Ct. 2806,

SS EEE CUED cccccccccscccccccccs 25

Myers v. Morris, 810 F.2d 1437 (8 Cir. 1987) ... 19

Pennsylvania Dept. of Corrections v. Yeskey, 524

U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215

De eo cates a uceeecees 2

Rose v. Bartle, 871 F.2d 331 (3% Cir. 1989) ...... 10, 11

Smith v. Holtz, 210 F.3d 186 (3% Cir. 2000) ...... 1]

State v. Michaels, 264 N.J. Super. 579 (App. Div.

ee ee en eekndeedeseeescess 26, 28

State v. Michaels, 136 N.J. 299 (1994) ... 19, 20, 21, 26

Tate v. Grose, 412 F. Supp. 487 (E.D. Pa. 1976) .. 10

Statute:

EE passim

Rules:

Supreme Court Rule 10 ..... 2... ccc eee l

Supreme Court Rule 10(a) .................... 3

l

REASONS FOR DENYING THE WRIT

MICHAELS HAS FAILED TO SET FORTH A COM-

PELLING REASON FOR GRANTING HER PETITION

FOR A WRIT OF CERTIORARI. HER PETITION,

THEREFORE, MUST BE DENIED.

Supreme Court Rule 10 (“Considerations Governing

Review on Certiorari”) sets forth the rationale underlying

the Court’s basis for granting a party’s petition for certiorari.

As stated in pertinent part, Supreme Court Rule 10 expressly

States that “review on a writ for certiorari is not a matter of

right, but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling reasons.”

McArdle respectfully submits that a careful review of

Margaret Kelly Michaels’ (hereinafter “Michaels”) petition

reveals the absence of a single compelling reason for granting

her writ of certiorari. McArdle respectfully submits this brief

in Opposition to Michaels’ petition for a writ of certiorari

and respectfully beseeches the Court, for all of the following

reasons, to deny Michaels’ petition.

Michaels contends that this Court must grant certiorari

to correct the Court of Appeals’ allegedly erroneous

determination that Michaels has no right to redress under

42 U.S.C. § 1983 for the State’s use of “improperly obtained

statements of third parties” against her in the criminal

prosecution of her. She argues:

The Court of Appeals’ decision is based on the

district court’s decision which leaves an entire

class of criminal defendants without the benefit

of § 1983 redress by finding that constitutionally

protected rights do not exist when improperly

obtained statements of third parties are used

against them in a criminal prosecution.

(Pb at 7.)

2

In furtherance of her position, Michaels sets forth three

alleged deficiencies in the Court of Appeals’ reasoning, which

purportedly require this Court’s intervention. (Pb at 7.)

McArdle respectfully submits that a searching review of each

of these alleged deficiencies will lead this Court to the

inescapable conclusion that none of them, whether viewed

together or separately, constitutes sufficient reason for

granting Michaels’ petition.

Furthermore, Michaels’ petition incorporates an

argument questioning the district court’s holding that

McArdle was entitled to absolute immunity for all of her

prosecutorial functions. This is an argument that Michaels

never articulated or advanced in the court below. Michaels’

appeal to the United States Court of Appeals for the Third

Circuit challenged only the district court’s determination that

McArdle and the other defendants were entitled to qualified

immunity for certain of their actions. Michaels failed to seek

appellate review of the district court’s ruling as to the

applicability of absolute immunity to most of McArdle’s

actions. Now, Michaels is attempting to assert for the first

time in the appellate process an argument in opposition to

the affirmative defense that was raised by McArdle in the

district court. This Court should not consider this purported

issue since Michaels did not seek relief in the Court of

Appeals from the district court’s determination. The Supreme

Court will not ordinarily consider issues that are neither

raised nor considered by the Court of Appeals. Pennsylvania

Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S. Ct. 1952,

141 L. Ed. 2d 215 (1998). Furthermore, the district court

and the Court of Appeals for the Third Circuit both found

that McArdle was entitled to absolute immunity for her trial

work as well as for all of her actions involving the three

Grand Juries once probable cause was established in her

mind. That finding was consistent with the applicable case

law. Therefore, even if Michaels had perfected her right to

appeal the lower courts’ determination on that issue to this

3

Court, it would not be a basis for granting the relief she seeks

on the instant petition.

A. The Court Of Appeals’ Decision Was Consistent With

This Court’s Decision In Imbler v. Pachtman And

More Than Twenty-Five Years Of United States

Supreme Court Precedent. For Reasons Of “Stare

Decisis”, Michaels’ Petition For A Writ Of Certiorari

Must Be Denied.

The first alleged deficiency Michaels points to as

supporting this petition addresses the Court of Appeals’

entirely proper reliance upon the Court of Appeals for the

Seventh Circuit’s opinion in Buckley v. Fitzsimmons, 20 F.3d

789 (7® Cir. 1994). Michaels contends:

The Seventh Circuit’s majority opinion in Buckley

v. Fitzsimmons, 20 F.3d 789 (7 Cir. 1994), cert.

denied, 513 U.S. 1085, 115 S. Ct. 740, 130

L. Ed. 2d 642 (1995) directly conflicts with the

dissenting opinion regarding the existence of a

criminal defendants’ rights and is inconsistent

with the broad scope of the intended civil

remedies for a criminal defendant pursuant to

42 U.S.C. § 1983.

(Pb at 7.)

Michaels’ initial basis for seeking certiorari in this case

is not that this Court’s intervention is necessary because “a

United States court of appeals has entered a decision in

conflict with the decision of another United States court of

appeals on the same important matter.” Supreme Court Rule

10(a). Rather, her initial basis for seeking certiorari is her

challenge of the Court of Appeals for the Third Circuit’s

reliance upon a decision from the Seventh Circuit that

contained a majority opinion and a dissenting opinion that

4

were in “direct conflict” with one another. (Pb at 7.) Not

surprisingly, Michaels cites no authority from this Court or

any other court to suggest that the existence of a strident

dissenting opinion in a particular case precludes another court

from relying upon that case’s majority opinion. Also, as

indicated in the complete citation of the Buckley opinion

referenced above, this Court had the opportunity to grant a

petition for a writ of certiorari from the decision of the Court

of Appeals for the Seventh Circuit and declined to do so.

5

common law of torts. We have nevertheless

recognized that Congress intended the statute to

be construed in the light of common-law

principles that were well settled at the time of its

enactment. [Citations omitted.] Thus we have

examined common-law doctrine when identifying

both the elements of the cause of action and the

defense available to state actors.

513 U.S. 1085, 115 S. Ct. 740, 130 L. Ed. 2d 642 (1995). Kalina, 522 U.S. at 123, 118 S. Ct. at 506.

Justice Stevens then proceeded to discuss in detail this

Furthermore, the jurisprudence of this Court and the

Court’s decision in Imbler:

various United States Courts of Appeals in this area belies

Michaels’ assertion that the Court of Appeals’ decision in

this case is consistent with only the majority opinion of a

divided United States Court of Appeals for the Seventh

Circuit in Buckley. Rather, as set forth at length in the Court

of Appeals’ opinion and the district court’s opinion, both

lower courts modeled their opinions after this Court’s

jurisprudence, beginning with this Court’s decision in Jmbler

v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128

(1976).

Justice Stevens discussed 42 U.S.C. § 1983 and this

Court’s decision to limit the rights of a § 1983 plaintiff to

recoup money damages against a prosecutor for functions

he or she performed as a prosecutor in the underlying criminal

action in Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502,

139 L. Ed. 2d 471 (1997). Writing for a unanimous Court,

Justice Stevens spoke of the statute’s history and purpose:

Section 1983 is a codification of § 1 of the Civil

Rights Act of 1871. The text of the statute purports

to create a damages remedy against every state

official for the violation of any person’s federal

constitutional or statutory rights. The coverage of

this statute is thus broader than the pre-existing

[ W Je held that a former prisoner whose conviction

had been set aside in collateral proceedings could

not maintain a § 1983 action against the

prosecutor who had litigated the charges against

him. Relying in part on common-law precedent,

and perhaps even more importantly on the policy

considerations underlying that precedent we

concluded that “a state prosecuting attorney who

acted within the scope of his duties in initiating

and pursuing a criminal prosecution” was not

amenable to suit under § 1983. Imbler, 424 U.S.

at 410, 96 S. Ct. at 985.

Liberally construed, Imbler’s complaint included

not only a charge that the prosecution had been

wrongfully commenced, but also a charge that

false testimony had been offered as well as a

charge that exculpatory evidence had been

suppressed. His constitutional claims were thus

broader than any specific common-law

antecedent. Nevertheless, relying on common-law

decisions providing prosecutors with absolute

6

immunity from tort actions based on claims that

the decision to prosecute was malicious and

unsupported by probable cause, as well as from

actions for defamation based on statements rade

during trial, we concluded that the statute should

be construed to provide an analogous defense

against the claims asserted by Imbler. The policy

considerations that justified the common-law

decisions affording absolute immunity to

prosecutors when performing traditional

functions applied equally to statutory claims

based on the conduct of the same functions.

Kalina, 522 U.S. at 123-125, 118 S. Ct. at 506-07. Emphasis

added.

Justice Stevens continued:

Those considerations included both the interest

in protecting the prosecutor from harassing

litigation that would divert his time and attention

from his official duties and the interest in enabling

him to exercise independent judgment when

“deciding which suits to bring and in conducting

them in court.” Imbler, 424 U.S. at 424, 96 S. Ct.

at 992. The former interest would lend support to

an immunity from all litigation against the

occupant of the office whereas the latter is

applicable only when the official is performing

functions that require the exercise of prosecutorial

discretion. Our later cases have made it clear that

it is the interest in protecting the proper functioning

of the office, rather than the interest in protecting

its occupant, that is of the primary importance.

Kalina, 522 U.S. at 125, 118 S. Ct. at 507.

7

In this matter Michaels alleged that McArdle

“deliberately and knowingly submitted misleading and false

evidence and testimony to the Granc Jury to maliciously and

negligently procure an indictment.” (Michaels’ Amended

Complaint at First Count, J 23.) Furthermore, Michaels

alleged that McArdle “deliberately, recklessly, negligently

and knowingly submitted misleading false evidence and

testimony to the trial jury and as a proximate result thereof,

Plaintiff Margaret Kelly Michaels was convicted and

subsequently incarcerated.” (Michaels’ Amended Complaint

at First Count, J 24.)

Thus, notwithstanding Michaels’ assertions to the

contrary, she petitions this Court to overturn established,

long-standing jurisprudence. Michaels’ allegations against

McArdle have consistently been comprised of two prongs.

The first prong is that McArdle (either personally or through

the Essex County Prosecutor’s Office’s investigators) utilized

improper interrogation techniques to obtain statements from

the children who were the alleged victims of sexual abuse at

Michaels’ hands. The second prong, as set forth in the

preceding paragraph, is that McArdle presented the testimony

obtained as a result of the allegedly improper interrogation

techniques to obtain three Grand Jury indictments and,

following a lengthy criminal trial, a conviction of Michaels,

which otherwise would not have been obtained.

In an effort to divert this Court’s attention from the fact

that she seeks the opportunity to prosecute a cause of action

against McArdle, which this Court has repeatedly held cannot

exist as a matter of law, Michaels has framed the reason

underlying her petition as follows:

THE COURT OF APPEALS’ DECISION

LEAVES AN ENTIRE CLASS OF CRIMINAL

DEFENDANTS WITHOUT THE BENEFIT OF

§ 1983 REDRESS BY FINDING THAT

8

CONSTITUTIONALLY PROTECTED RIGHTS

DO NOT EXIST WHEN IMPROPERLY

OBTAINED STATEMENTS OF THIRD

PARTIES ARE USED AGAINST THEM IN

A CRIMINAL PROSECUTION.

(Pb at 7.)

In Jmbler, this Court concluded that the prosecutor’s

activities at issue “were intimately associated with the

judicial phase of the criminal process and thus were functions

to which the reasons for judicial immunity apply with full

force.” Imbler, 424 U.S. at 430, 96 S. Ct. at 995. See also

Kalina, 522 U.S. at 125, 118 S. Ct. at 507. Recently, in

Kalina, Justice Stevens discussed some of the cases that this

Court has decided in the wake of /mbler and the Court’s

reaffirmation of its holding in Jmbler:

Subsequent cases have confirmed the importance

to the judicial process of protecting the prosecutor

when serving as an advocate in judicial

proceedings. Thus, in Burns v. Reed, 500 U.S. 478,

111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991), after

noting the consensus among the Courts of Appeals

concerning prosecutorial conduct before grand

juries, id., at 490 n.6, 111 S. Ct. at 1941 n.6, we

held that the prosecutor’s appearance in court in

support of an application for a search warrant and

the presentation of evidence at that hearing were

protected by absolute immunity. /d. at 492, 111

S. Ct. at 1942-43. And, in Buckley v. Fitzsimmons,

509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209

(1996), we categorically stated that “acts

undertaken by a prosecutor in preparing for the

initiation of judicial proceedings or for trial, and

which occur in the course of his role as an

advocate for the State, are entitled to the

9

protections of absolute immunity.” 509 U.S.

at 273, 113 S. Ct. at 2615.

Kalina, 522 U.S. at 125-126, 118 S. Ct. at 507.

The district court granted summary judgment in

McArdle’s favor with respect to Michaels’ § 1983 malicious

prosecution claim against her, a decision that was affirmed

by the United States Court of Appeals for the Third Circuit.

Michaels’ § 1983 malicious prosecution claim against

McArdle derived from McArdle’s alleged submission of false

and misleading testimony and evidence by McArdle to the

three Grand Juries in order to procure an indictment.

Michaels’ § 1983 malicious prosecution claim against

McArdle also derived from McArdle’s alleged submission

of false and misleading testimony and evidence to the trial

jury in order to obtain a conviction. Thus, Michaels’

allegations with respect to McArdle directly addressed

McArdle’s initiation of the criminal prosecution against

Michaels and the manner in which McArdle presented

witness testimony and evidence to the Grand Juries and the

trial jury.

McArdle’s conduct that formed the basis of Michaels’

civil action against her is unquestionably conduct for which

McArdle as a prosecutor has traditionally been afforded

absolute immunity from liability by this Court. “The duties

of the prosecutor in [her] role as an advocate for the State

involve actions preliminary to the initiation of a prosecution

and actions apart from the courtroom.” Buckley, 113 S. Ct.

at 2615, citing Imbler, 424 U.S. at 431 n.33. Assuming

arguendo that McArdle had presented deliberately false and

misleading testimony to the Grand Juries and/or the trial jury,

her conduct was still within the ambit of her role as an

advocate for which she is absolutely immune from liability.

“An effort to control the presentation of a witness’ testimony

10

was entitled to absolute immunity because it was fairly within

[the prosecutor's] function as an advocate.” Buckley, 113

S. Ct. at 2615, citing Imbler, 424 U.S. at 430 n.32.

The Court of Appeals for the Third Circuit has followed

this Court’s lead in this area. In Rose v. Bartle, 871 F.2d 331

(3° Cir. 1989), the Court of Appeals affirmed the district

court’s dismissal of a complaint against defendant

prosecutors. In doing so the court observed that:

the plaintiff's allegations involve direct solicitations

of testimony for use in the grand jury proceedings.

Such solicitations are encompassed within the

“preparation necessary to present a case” and

therefore are immunized as involving the

prosecutors’ advocacy functions.

Rose, 871 F.2d at 344.

The court in Rose also cited with approval the reliance

placed by the district court upon Tate v. Grose, 412 F. Supp.

487 (E.D. Pa. 1976) in support of its dismissal of the

plaintiff’s complaint:

There is no reason to depart from a rule of absolute

prosecutorial immunity merely because the

complaint alleges that the defendants not only

used perjured testimony against plaintiff but

solicited that perjured testimony as well. To allow

such an allegation to defeat the prosecutor's

immunity would vitiate the Jmbler holding.

Anyone against whom perjured testimony was

used could then force the prosecutor to court in a

civil damage action simply by reframing the claim

to allege that the perjured testimony was solicited.

Rose, 871 F.2d at 344 n.8, citing Tate, 412 F. Supp. at 488.

1]

The Court of Appeals for the Third Circuit reiterated its

position in Giuffre v. Bissell, 31 F.3d 1241 (3* Cir. 1994).

In Giuffre, the court held that “a prosecutor is absolutely

immune when making his decision [to initiate a prosecution]

even when he acts without a good faith belief that any

wrongdoing occurred.” /d. at 1352. See also Rose, 871 F.2d

at 347 n.12.

Recently, the Court of Appeals for the Third Circuit had

the opportunity to revisit the issue of a prosecutor's absolute

immunity. It did so in a civil action against a variety of State

officials arising from the decision not to provide exculpatory

evidence to the plaintiff’s counsel while the plaintiff was

the defendant in the underlying murder trial. In Smith v. Holtz,

210 F.3d 186 (3° Cir. 2000), the court noted:

It was Guida, the prosecutor, who made the

decision not to disclose the lifters [the exculpatory

evidence] to Smith’s counsel. At the time he

made that decision Guida represented the

Commonwealth’s interests, not the interests of

Holtz, Dove or Yatron. However, Guida, as

prosecutor, has absolute immunity from liability

in Smith’s § 1983 action so long as he was

functioning in his prosecutorial capacity when he

made that decision. Jmbler v. Pachtman, 424 U.S.

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

see also Buckley v. Fitzsimmons, 509 U.S. 259,

113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993)

(prosecutor has absolute immunity in § 1983

action for the initiation and pursuit of a criminal

prosecution, including presentation of the state’s

case at trial).

Smith, 210 F.3d at 199-200 n.18.

McArdle respectfully submits that a fair and careful

review of the evidence before it will lead this Court to the

12

inescapable conclusion that, despite Michaels’ representations

to the contrary, there is nothing here that warrants this Court

ignoring its own precedent and creating an arbitrary exception

to Imbler. As Justice Scalia wrote in his concurring opinion

in Kalina, “both Jmbler and the “functional” approach are

so deeply embedded in our § 1983 jurisprudence that, for

reasons of stare decisis, | would not abandon them now.”

Kalina, 522 U.S. at 135, 118 S. Ct. at 512 (Scalia, J.,

concurring.) Similarly, McArdle respectfully submits that

Michaels has not presented this Court with any basis for

abandoning them at this time.

B. There Is No Inconsistency Between The Courts Of

Appeals That Needs To Be Addressed By This Court.

Thus Michaels’ Petition For A Writ Of Certiorari

Must Be Denied.

Michaels further asserts that certiorari must be granted

here to resolve the dispute between the Court of Appeals for

the Seventh Circuit in its Buckley opinion and the Court of

Appeals for the Tenth Circuit in Clanton v. Cooper, 129 F.3d

1147 (10® Cir. 1997). (Pb at 7.) She further asserts that

certiorari is necessary here because the subject decision of

the Court of Appeals for the Third Circuit is inconsistent

with Clanton and the Court of Appeals’ reasoning was

materially flawed. (Pb at 9 and 10.) Michaels’ position that

a conflict between the various Courts of Appeals on the

relevant issues herein is completely devoid of merit. No such

dispute exists. Thus, for the following reasons, McArdle

respectfully submits that the petition for a writ of certiorari

to address this non-existent conflict must be denied.

Michaels’ assertion that there is a dispute between the

decision of the Court of Appeals for the Seventh Circuit in

Buckley and the Court of Appeals for the Tenth Circuit in

Clanton is erroneous. In Clanton, the Court of Appeals for

the Tenth Circuit affirmed a district court’s decision that

13

Agent Cooper of the Oklahoma State Fire Marshal's Office

was not entitled to qualified immunity for the methods he

employed in obtaining a confession from a third party that

was used as the basis for issuing a warrant for the plaintiff's

arrest. Clanton, 129 F.3d at 1154. The court stated, “Clanton

has stated a legally cognizable Section 1983 claim to the

extent that she has alleged that Cooper knowingly and

intentionally swore to untrue facts in an affidavit to obtain

Clanton’s arrest warrant.” /d. at 1155.

In reaching that conclusion the court in Clanton ruled

that the plaintiff had the right to contest the voluntariness of

the third party’s confession, whicli had served as the basis

for the warrant for her arrest. /d. at 1157. The court observed

“a constitutional violation may assist officers in gathering

evidence, but the violation has both offended the Constitution

and rendered the evidence unreliable. A coerced confession

fits into this category.” Clanton, 129 F.3d at 1157. The court

continued by stating “consequently, because the evidence is

unreliable and its use offends the Constitution, a person may

challenge the government's use against him or her of a

coerced confession given by another person.” Clanton, 129

F.3d at 1157-58.

Seemingly unbeknownst to Michaels, one of the court's

bases for its holding was the majority opinion in Buckley.

(“Confessions wrung out of their makers may be less reliable

than voluntary confessions, so that using one person's

coerced confession at another's trial violates his rights under

the due process clause.” Buckley v. Fitzsimmons, 20 F.3d 789,

795 (7 Cir. 1994), Clanton, 129 F.3d at 1158.) Thus,

consistent with the position expressed by the United States

Court of Appeals for the Seventh Circuit in Buckley, the

United States Court of Appeals for the Tenth Circuit in

Clanton concluded “Clanton may contest the voluntariness

of Eave’s confession not based on any violation of his

14

constitutional rights, but rather as a violation of her own

Fourteenth Amendment right to due process.” /d. at 1158.

Michaels ignores the distinction between the State actors

who were involved in the Buckley and Clanton matters. As

noted above, the plaintiff in Clanton alleged it was Agent

Cooper, a State Fire Marshal, whose conduct violated her

due process rights. In Buckley, the plaintiff alleged that the

prosecutor, Fitzsimmons, and several of his assistants were

the individuals whose conduct violated his due process nghts.

In Buckley, the Court of Appeals for the Seventh Circuit

framed the issues with which it was confronted subsequent

to this Court's remand:

The Supreme Court found “unclear” the “precise

contours” of Buckley's claim that the prosecutors

violated the due process clause “through

extraction of statements implicating him by

coercing two witnesses and paying them money.”

__ US. __, 113 S. Ct. at 2619. It evidently

expected Buckley to elaborate on remand, so did

we. Instead Buckley simply referred us to the very

paragraphs of the complaint that perplexed the

Justices .... According to the complaint, the

interrogation and payments took place early in the

investigation, while the prosecutors were just

beginning to piece events together. Thus there

cannot be absolute immunity. But qualified

immunity is available unless the acts violated

“clearly established” constitutional norms.

Harlow, 457 U.S. at 818, 102 S. Ct. at 2738;

Anderson v. Creighton, 483 U.S. 635, 640, 107

S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). What

this complaint alleges does not state a claim under

the Constitution, let alone suggest a violation of

clearly established rights.

15

Buckley v. Fitzsimmons, 20 F.3d 789, 794 (7 Cir. 1994),

cert. denied, 513 U.S. 1085, 115 S. Ct. 740. }

642 (1995). =

The plaintiff's allegations against the prosecutors in

Buckley were “the prosecutors repeatedly interrogated two

other persons, that the prosecutors paid them for statements

inculpating him, that during the interrogations the

prosecutors ‘coerced’ them to finger him and that the

accusations Cruz and Hernandez leveled against him are

‘obviously false’.” Jd. at 794. In Buckley, the Court of Appeals

for the Seventh Circuit correctly recognized that Buckley

had no remedy under § 1983 against the prosecutors for their

alleged use of unreliable, false witness testimony at the Grand

Jury and at trial:

For if the constitutional entitlement is a right to

prevent use of the confession at trial (or before

the grand jury) then absolute immunity under

Imbier defeats Buckley's claim. Obtaining the

confession is not covered by immunity but does

not violate any of Buckley's rights; using the

confession could violate Buckley’s rights but

would be covered by absolute immunity. ...

Prosecutors are entitled to absolute immunity for

actions as advocates before the grand jury and at

trial even if they present unreliable or wholly

fictitious proofs. ___—~-U.S. __ n.3, 113 S. Ct. at

2612 n.3 (approving or at least not disturbing our

prior holding to that effect).

Buckley, 20 F.3d at 795.

A fair and thorough review of the decision rendered by

the United States Court of Appeals for the Seventh Circuit

in Buckley and the decision rendered by the United States

Court of Appeals for the Tenth Circuit in Clanton reveals

16

that no conflict exists. The Buckley court and the Clanton

court agreed that using a confession coerced from a third

party against a defendant at trial would infringe upon the

defendant's due process rights. In Buckley, the Court of

Appeals for the Seventh Circuit had to rule upon the question

whether the prosecutors’ use of the coerced confessions at

trial could serve as the basis for the plaintiff's § 1983 claim

against the prosecutors. The court held, in accordance with

this Court’s jurisprudence that “using the confession could

violate Buckley's rights but would be covered by absolute

immunity. . . . Prosecutors are entitled to absolute immunity

for actions as advocates before the grand jury and at trial

even if they present unreliable or wholly fictitious proofs.”

Buckley, 20 F.3d at 795. (Emphasis added.) Michaels’ claim

of a conflict between the United States Court of Appeals for

the Seventh Circuit and the United States Court of Appeals

for the Tenth Circuit is not supported by the case law upon

which she relies. The purported dispute between the circuits

does not exist.

Here, Michaels alleged that McArdle violated her

constitutional rights because she “deliberately and knowingly

submitted misleading and false evidence and testimony to

the Grand Jury to maliciously and negligently procure an

indictment.” (Michaels’ Amended Complaint at First Count,

q 23.) Furthermore, Michaels alleged that McArdle

“deliberately, recklessly, negligently and knowingly

submitted misleading false evidence and testimony to the

trial jury and as a proximate result thereof, Plaintiff Margaret

Kelly Michaels was convicted and subsequently incarcerated.”

(Michaels’ Amended Complaint at First Count, { 24.) Michaels’

allegations as to McArdle are similar to those advanced by

the plaintiff in Buckley. It is beyond dispute, as set forth in

this brief and in the preceding citation from Buckley, that

even if Michaels’ allegations as to McArdle are true, McArdle

is absolutely immune from liability for all of her actions as

an advocate whether before a grand jury or at trial.

17

Michaels’ erroneous interpretation of the decision of the

Court of Appeals for the Tenth Circuit in Clanton is the

underlying basis of her claim that the Court of Appeals for

the Third Circuit erred in its analysis of McArdle’s role in

gathering and using the statements that inculpated Michaels.

Michaels argues that “pursuant to the mandate of Clanton,

neither the investigators nor the prosecutors should be

immune from liability for their role in obtaining the improper

statements.” (Pb at 10.) McArdle submits that no such error

was made by the Court of Appeals for the Third Circuit.

In Clanton, the state actor against whom Clanton brought

her § 1983 claim was Cooper, an agent with the Oklahoma

State Fire Marshal’s Office. Clanton, 129 F.3d at 1152.

Inasmuch as Cooper never performed any “quasi-judicial”

functions, the court never had to consider whether he was

absolutely immune from liability. Rather, the question for

the court’s consideration was whether Cooper was entitled

to the protection of qualified immunity. /d. at 1152.

The threshold consideration in determining the viability

of the affirmative defense of qualified immunity to a public

official's conduct is “whether the plaintiff's claims make out

a constitutional violation.” Assaf v. Fields, 178 F.3d 170, 174

(3* Cir. 1999). In this matter, the Court of Appeals for the

Third Circuit held unanimously that “the district court did

not err in concluding that Michaels did not demonstrate a

violation of her constitutional rights when the defendants

employed improper interview techniques with the children.”

Michaels v. State of New Jersey, et al., No. 99-5486 (filed

June 5, 2000), at Michaels’ App. 12. McArdle submits that

the Court of Appeals’ ruling below is a correct application

of the relevant law to the facts of this matter and should end

this Court’s inquiry into the issue of qualified immunity.

However, assuming arguendo that Michaels’ constitutional

rights were violated by the interrogation techniques

employed in the criminal prosecution, McArdle would still

18

be entitled to the protection of qualified immunity for her

actions in obtaining the allegedly improper statements.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727,

73 L. Ed. 2d 396 (1982) this Court held “government officials

performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

457 U.S. at 818, 102 S. Ct. at 2738. The district court in this

matter held that McArdle was entitled only to qualified

immunity for certain of her actions in the criminal matter.

“Prior to the decision to seek an indictment, Sencer-McArdle

was functioning as an investigator or engaging in

investigative activities, conduct not protected by absolute

immunity.” Michaels v. New Jersey, 50 F. Supp. 2d 353, 360

(D.N.J. 1999).

The “objective reasonableness” test this Court articulated

in Harlow requires a court’s review of “not only the currently

applicable law, but whether the law was clearly established

at the time an action occurred.” 457 U.S. at 818, 102 S. Ct.

at 2738. This Court further explained the “objective

reasonableness” test in Malley v. Briggs, 475 U.S. 335, 106

S. Ct. 1092, 89 L. Ed. 2d (1986). In Malley, this Court

explained that “defendants will not be immune if, on an

objective basis, it is obvious that no reasonably competent

officer would have concluded that a warrant should issue;

but if officers of reasonable competence could disagree on

this issue, immunity should be recognized.” 475 U.S. at 341,

106 S. Ct. at 1096.

Here Michaels cannot articulate a colorable argument

that the district court erred when it determined that McArdle’s

interrogation techniques did not violate an accepted standard.

The district court properly reviewed and examined what, if

any, applicable standards existed in 1985 regarding the

19

interrogation of young children who were the alleged victims

of child abuse. In this regard, the district court’s reliance

upon Myers v. Morris, 810 F.2d 1437 (8" Cir. 1987), a case

factually analogous to Michaels’ case, was appropriate.

In Myers, the Court of Appeals for the Eighth Circuit framed

the issue before it as follows:

The plaintiffs have alleged however that the

deputies’ interrogation conduct was so improper

that in essence only fabricated accusations could

have emerged from the interview sessions.

We examine the specific interrogation conduct

identified in the record to determine whether it

SO exceeded accepted legal norms for the

questioning of witnesses and victims that the

interrogating detectives knew or should have

known their conduct would violate the rights of

accused persons. We do not think it sufficient for

purposes of this inquiry to determine whether

Jourth, fifth, sixth and fourteenth amendment

rights were clearly established in 1984. Our

inquiry is whether from a 1984 perspective the

law was clearly established that the conduct in

which the deputies engaged would violate such

rights.

Myers, 810 F.2d at 1458-59. (Emphasis added.)

In the courts below, Michaels argued that the Supreme

Court of New Jersey’s opinion in the criminal matter

State v. Michaels, 136 N.J. 299 (1994), settled the question

as to whether McArdle could rely upon the affirmative

defense of qualified immunity. Michaels argued that the

Supreme Court of New Jersey’s determination that the State’s

investigation, particularly the manner in which the children

were interviewed, was “professionally inept” stripped

20

McArdle of her entitlement to the protection of qualified

immunity. However, Michaels failed to address the sources

upon which the Supreme Court of New Jersey relied in

making its determination that the manner in which the

children were interviewed was “professionally inept”.

The Supreme Court of New Jersey cited from a variety

of learned treatises, studies of children, rules of evidence

and case law to reach its conclusion that the State's

investigation of the sexual abuse allegations against Michaels

was “professionally inept”. However, under the Harlow test

of “objective reasonableness” the Supreme Court of

New Jersey’s determination that the investigation was

“professionally inept” does not equate with a finding that

her actions were “plainly incompetent” for purposes of

determining her entitlement to qualified immunity. A critical

component of a court’s determination that an actor’s conduct

was “plainly incompetent” is an assessment of the conduct

in light of the clearly established law at the time the conduct

occurred. Harlow, 457 U.S. at 818, 102 S. Ct. at 2738.

That assessment was not part of the Supreme Court of

New Jersey’s opinion.

Instead, the Supreme Court of New Jersey relied upon

the materials that had developed on the subject of the best

method for interviewing children who were the alleged

victims of sexual abuse during the nine years subsequent to

the State’s investigation into the sexual abuse allegations

against Michaels and prior to the Court’s decision. State v.

Michaels, 136 N.J. at 309-12. Finally, the Court relied upon

what it referred to as “judicial recognition of the very same

concerns expressed in the academic literature and addressed

by the guidelines established by governmental authorities

with respect to the improper interrogation of alleged child

sex abuse victims”, id. at 312, to support its conclusion

regarding the impropriety of the interviews in Michaels’ case.

All of the cases cited by the New Jersey Supreme Court were

21

decided in either 1990 or 1991. Jd. The Court’s conclusion

that “the use of coercive or highly suggestive interrogation

techniques can create a significant risk that the interrogation

itself will distort the child’s recollection of events, thereby

undermining the reliability of the statements and subsequent

testimony concerning such events”, id., was based upon its

review and assessment of all of the aforementioned materials.

The district court observed, correctly, that “unfortunately

for Michaels herself, the Michaels case inspired a change in

the law.” Michaels, 50 F. Supp. 2d at 364-65. Furthermore

the district court acknowledged the existence of an important

distinction in the governing standard as between Michaels’

claims as a defendant in the criminal action and her claims

as a plaintiff in a § 1983 civil action:

[T]here is an important distinction between what

the Appellate Division and the Supreme Court of

New Jersey did and said on the Michaels appeal

and what Michaels asks this court to do today.

Both of the New Jersey higher courts that dealt

with the case were permitted to enjoy the benefit

of hind-sight; this court is not. Indeed, the

information on which the Appellate Division and

the New Jersey Supreme Court relied in 1993 and

1994, respectively, came from articles and

journals published after Michaels was found

guilty.

Michaels, 50 F. Supp. 2d at 365. (Emphasis added.)

A clear distinction can be drawn between McArdle’s

actions in this matter and Agent Cooper's actions in Clanton.

As the district court noted in this matter “officials are not

liable for bad guesses in gray areas; they are liable for

transgressing bright lines.” Michaels, 50 F. Supp. 2d at 365.

The district court concluded “considering what little was

22

known in the mid-1980’s, this court cannot say that the

defendants transgressed any ‘bright lines’.” /d.

Conversely, in Clanton the Court of Appeals for the Tenth

Circuit ruled that Agent Cooper had, in fact, transgressed a

bright line regarding the use of a coerced confession. It was

that determination that stripped him of qualified immunity.

In Clanton, after determining that Cooper's false

representation to a suspect that physical evidence linked the

suspect to the crime did not render the confession coerced,

Clanton, 129 F.3d at 1158, the court turned its attention to

the remaining allegation against Cooper:

Cooper also told Michael that he would get a

twenty-five year sentence if he didn’t confess, but

would “get off lightly” if he confessed to a pattern

of events suggested by Cooper. ...

Under Supreme Court and Tenth Circuit

precedent, a promise of leniency is relevant to

determining whether a confession was involuntary

and, depending on the totality of the circumstances,

may render a confession coerced.

Clanton, 129 F.3d at 1158-59.

The Court of Appeals then cited a number of United

States Supreme Court and Tenth Circuit opinions that

explicitly stated that what Cooper did rendered the confession

he had obtained coerced. See Clanton, 129 F.3d at 1159.

In deciding that Cooper’s actions were, therefore, not

protected by qualified immunity, the Court proclaimed

all of these opinions were released before the

events in this case. Thus it was clearly established

at the time of the interrogation that a promige of u=- *

leniency may render a confession ifrvotuntary if.

it was sufficiently compelling and-linked to the

-

ee PR oe ¥ Par Ls

23

confession so that it could be said that the

defendant's will was overcome by the offer.

Clanton, 129 F.3d at 1159.

Thus, for all of the foregoing reasons, it is evident that

Michaels’ position that there is a conflict between the various

Courts of Appeals on the relevant issues herein is completely

devoid of merit. No such dispute exists. Therefore the petition

for a writ of certiorari to address this non-existent conflict

must be denied.

C. Michaels’ Claim That Certiorari Is Necessary Here

To Ensure That She Has The Right To § 1983 Redress

Is Absolutely Without Merit And Must Be Rejected

By This Court.

Finally, McArdle submits that this Court must flatly

reject Michaels’ contention that certiorari is necessary here

to ensure that litigants, such as herself, receive redress under

§ 1983. Michaels contends that the Third Circuit’s conclusion

that she received redress through the setting aside of the

criminal conviction and digmissal of the tharges against her

is “inconsistent with the intent of 42 U.S.C. § 1983 action.

It leaves a whole class of wrongfully accused defendants

without civil recourse; which is also contrary to the intent of

§ 1983.” (Pb at 11.) Not surprisingly, Michaels cites no legal

authority in support of this argument. This fs So even though

Michaels is asking this Court to do nothing less than ignore

its own precedent so that it might create this exceptional

remedy for her.

In Jmbler, this Court expressed its understanding of the

rationale for making a prosecutor absolutely immune from

liability for actions taken within the scope of her

prosecutorial duties as follows:

24

The office of public prosecutor is one which must

be administered with courage and independence.

Yet how can this be if the prosecutor is made

subject to suit by those whom he accuses and fails

to convict? To allow this would open the way for

unlimited harassment and embarrassment of the

most conscientious officials by those who would

profit thereby. There would be involved in every

case the possible consequences of a failure to

obtain a conviction. There would always be a

question of possible civil action in case the

prosecutor saw fit to move for dismissal of the

case. The apprehension of such consequences

would tend toward great uneasiness and toward

weakening the fearless and impartial policy which

would characterize the administration of this

office. The work of the prosecutor would thus be

impeded, and we would have moved away from

the desired objective of stricter and fairer law

enforcement.

424 U.S. at 423-24, 96 S. Ct. at 991-92.

The concern of protecting prosecutors from civil liability

in § 1983 actions that were brought against them for actions

undertaken in their role as an advocate was also addressed

by this Court in Buckley:

In particular [in Jmbler] we expressed concern that

fear of potential liability would undermine a

prosecutor's performance of his duties by forcing

him to consider his own potential liability when

making prosecutorial decisions and by diverting

his “energy and attention ... from the pressing

duty of enforcing the criminal law.” Jmbler, 424

U.S. at 424-25. Suits against prosecutors would

devolve into “a virtual retrial of the criminal

25

offense in a new forum,” id. at 425, and would

undermine the vigorous enforcement of the law

by providing a prosecutor with an incentive not

“to go forward with a close case where an acquittal

likely would trigger a suit against him for

damages.” /d. at 424 and n.26.

Buckley, 509 U.S. at 2614 n.4, 113 S. Ct. at 2614 n.4.

Finally, in Kalina y. Fletcher, 522 U.S. at 131, 118 S.

Ct. at 510 (1997), this Court reiterated its position that “[wJe

do not depart from our prior cases that have recognized that

the prosecutor is fully protected by absolute immunity when

performing the traditional functions of an advocate.”

Nevertheless, Michaels contends that she has been

unjustly denied § 1983 redress and that the Third Circuit's

conclusion that she has already received her remedy is

erroneous. Neither the applicable law nor the facts of this

case support this contention. In Mitchell v. Forsyth, 472 U.S.

511, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985), the Court

observed that a component of an official’s entitlement to the

protection of absolute immunity is the determination as to

whether there exists “self-correction” within the system

where the alleged misconduct occurred.

{M Jost of the officials who are entitled to absolute

immunity from liability for damages are subject

to other checks that help to prevent abuses of

authority from going unredressed. . . . The judicial

process is largely self-correcting: procedural

rules, appeals and the possibility of collateral

challenges obviate the need for damages actions

to prevent unjust results.

472 U.S. at 522, 105 S. Ct. at 2813.

26

Here, the improper actions Michaels alleges that

McArdle undertook during the criminal prosecution of

Michaels more than a decade ago have been remedied by the

appellate courts of the State of New Jersey. On March 26,

1993, the Appellate Division of the Superior Court of New

Jersey reversed the plaintiff's criminal conviction. State v.

Michaels, 264 N.J. Super. 579 (App. Div. 1993). The

Appellate Division's decision was affirmed by the Supreme

Court of New Jersey on June 23, 1994. State v. Michaels,

136 N.J. 299 (1994). In Giuffre v. Bissell, 31 F.3d 1241

(34 Cir. 1994), the Court stated that one of the reasons that a

prosecutor's decision to initiate a prosecution is a decision

for which the prosecutor is absolutely immune from liability

is that the criminal justice system has its own mechanism

for protecting a falsely-accused defendant. “Harm to a falsely

charged defendant is remedied by safeguards built into

the judicial system — probable cause hearings, dismissal of

the charges — and into the state codes of responsibility.”

Giuffre, 31 F.3d at 1252.

The position articulated by the Third Circuit Court of

Appeals in Giuffre is consistent with the Jmbler Court's clear

placement of a greater value on protecting the fairness of

the criminal justice system as a whole rather than on

permitting the recovery of monetary damages against a

prosecutor for performance of her duties as an advocate. That

is so even in a case where the allegedly aggrieved defendant

was convicted of a crime. In Jmbler, this Court recognized

that “[vJarious post-trial procedures are available to

determine whether the accused has received a fair trial. These

procedures include the remedial powers of the trial judge,

appellate review, and state and federal post-conviction

collateral remedies.” 424 U.S. at 427, 96 S. Ct. at 993. The

Imbler Court further recognized that

in all of these the attention of the reviewing judge

or tribunal is focused primarily on whether there

27

was 4 fair trial received under law. The focus

should not be biurred by even the subconscious

knowledge that a post-trial decision in favor of

the accused might result in the prosecutor's being

called upon to respond in damages for his error

or mistaken judgment. ;

ld.

The /mbler Court determined “the considerations

outlined above dictate the same absolute immunity under

§ 1983 that the prosecutor enjoys at common law.” 424 U.S.

at 427, 96 S. Ct. at 993. The Court recognized “this immunity

does leave the genuinely wronged defendant without civil

redress against a prosecutor whose malicious or dishonest

action deprives him of liberty.” Jd. The Court nevertheless

concluded “the alternative of qualifying a prosecutor's

immunity would disserve the broader public interest. It would

prevent the vigorous and fearless performance of the

prosecutor's duty that is essential to the proper functioning

of the criminal justice system.” Jd.

Here, the Appellate Division of the Superior Court of

New Jersey reversed Michaels’ criminal conviction and the

New Jersey Supreme Court affirmed the reversal. The district

court observed

[hJaving failed to convince the trial judge that

remedy was required because improper

interrogation techniques which led to unreliable

evidence had been used, Michaels utilized the

appellate process. Slow as that process may have

seemed to her, it was the appropriate method by

which to challenge those techniques and that

evidence.

Michaels, 50 F. Supp. 2d at 363.

28

The Court of Appeals for the Third Circuit also

recognized that any harm Michaels may have suffered as a

result of McArdle’s actions had been addressed and remedied

by New Jersey's criminal justice system. “Michaels’

conviction was reversed and the serious charges against her

were dismissed because the children’s testimony was

unreliable.” Michaels v. State of New Jersey, et al.,

No. 99-5486 (filed June 5, 2000), at Michaels’ App. 10.

Furthermore, McArdle respectfully submits that this Court

must recognize the extensive pre-trial motions and hearings

that were conducted in the criminal case as to the

admissibility of the interviews of the various children.

In its 1993 opinion Appellate Division of the Superior

Court of New Jersey “created” a “suggestibility hearing” for

use in future prosecutions of alleged child sexual abusers.

State v. Michaels, 264 N.J. Super. 579, 631-35. (App. Div.

1993). The record in the district court and the Court of

Appeals for the Third Circuit in this matter clearly revealed

that the hearing that the Appellate Division “created” in 1993

did in fact occur, pre-trial, in Michaels’ criminal prosecution.

The trial judge in the criminal matter conducted a hearing

on the issue and denied Michaels’ pre-trial motion to dismiss

the indictments due to the alleged improper suggestibility

of the interviewers’ techniques. Thus the “remedy” proposed

by the Appellate Division in 1993 had been employed by the

trial court several years earlier. Furthermore, after he

conducted the pre-trial hearing, the trial judge in the criminal

matter listened to all of the audio tapes and reviewed all of

the chilaren’s statements. Subsequent to doing so, the trial

judge ruled that the interviews were reliable and not the

product of impermissible suggestion. Thus the trial judge

ultimately ruled that the children’s statements were

admissible.

29

Michaels’ right to pursue appellate relief from Judge

Harth’s ruling, which ultimately resulted in the vacation of

her conviction and the dismissal of the charges against her,

serves to underscore the totality of the remedy she has already

received and the correctness of the Court of Appeals’ position.

CONCLUSION

Review on a writ for certiorari is not a matter of right

but of judicial discretion. It is Michaels’ burden to provide

this Court with compelling reasons for granting certiorari.

McArdle respectfully submits that a fair review of the record

in this case leads to but one conclusion: Michaels has not

provided any compelling reason for granting certiorari in this

matter. Michaels’ dissatisfaction with the Court of Appeals

for the Third Circuit's unanimous affirmation of the district

court's decision to grant summary judgment in McArdle’s

favor is understandable. However, a litigant’s dissatisfaction

with a court's decision cannot stand as the sole supporting

basis for asking this Court to exercise its discretion and grant

a writ for certiorari. Michaels’ position is inconsistent with

and contrary to this Court's longstanding jurisprudence that

has addressed a public official's reliance upon the affirmative

defenses of absolute immunity and qualified immunity. The

decision of the Court of Appeals for the Third Circuit was a

correct application of the relevant law to the facts of this

particular case. The petition should therefore be denied.

Respectfully submitted,

JACQUELINE A. DEGREGORIO

Counsel of Record

ADAM KENNY

WEINER LESNIAK

Attorneys for Respondent

Sara Sencer-McArdle

629 Parsippany Road

Parsippany, New Jersey 07054

(973) 403-1100