# Opposition Brief — Michaels v. McGrath

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1118

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0416%3A7. Public record. Not legal advice.