Opposition Brief — Roberts v. Kling

No. 96-1602

In The

Supreme Court of the United States

>

October Term, 1996

SUSAN LYNN ROBERTS,

Petitioner,

VS.

CHARLES TIMOTHY KLING,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

DAVID C. IGLESIAS MARK D. JARMIE

Director, Legal Bureau Counsel of Record

State of New Mexico Risk SHARP, JARMIE & SCHOLL, P.A.

Management Division Attorneys for Responden:

1100 St. Francis Drive 500 Marquette, N.W.

P.O. Drawer 26110 Suite 1360

Santa Fe, New Mexico 87502-6110 Albuquerque, New Mexico 87102

(505) 827-2202 (505) 842-5050

ers (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 LA ppoiiate

Senices. ine

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TABLE OF CONTENTS

Page

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Doabomnses OF GS CARD «oc ce vcccenavvcpesnssuceens |

Reasons for Denying the Writ ...........-eeeeeees a

COMONBTEOR 6 ccc ccrctevdsesesccccecccsesvevsess 9

TABLE OF CITATIONS

Cases Cited:

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ....... 6,7

Burns v. Reed, 500 U.S. 478 (1991) ............... 5

Ehrlich v. Giuliani, 910 F.2d 1220 (4th Cir. 1990) ... 5

Forrester v. White, 484 U.S. 219 (1988) ............ 4

Imbler v. Pachtman, 424 U.S. 409 (1976) .......... 4,5,8

Joseph v. Patterson, 795 F.2d 549 (6th Cir. 1986) .... 5

Lerwill v. Joslin, 712 F.2d 435 (10th Cir. 1983) ..... 5

Mailey v. Briggs, 475 U.S. 335 (1986) ............. 6, 7

Mee v. Ortega, 967 F.2d 423 (10th Cir. 1992) ....... 4

Pinaud v. Suffolk, 52 F.3d 1139 (2d Cir. 1995) ...... 5

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Contents

Page

Roberts v. Kling, 104 F.3d 316 (10th Cir. 1997) ..... 4,5

Schnecker v. City of Sioux City, 107 F.3d 662 (8th Cir.

DEED cu dce coeeurdececdececdecedcesecesstee 5

Statute Cited:

42 U.S.C. § 1983S ..cccccccsvece ceescvcesseeese 3,4

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RESPONSE TO PETITION FOR CERTIORARI

The Respondent, Charles Timothy Kling, respectfully prays

that the Petition for Writ of Certiorari to review the opinion

and judgment of the United States Court of Appeals for the

Tenth Circuit entered in this case on January 6, 1997, be denied.

INTRODUCTION

For the purposes of responding to this Petition, Respondent

does not challenge the statements of jurisdiction, constitutional

provision involved, or the basis for jurisdiction below made in

the Petition for Writ of Certiorari. Respondent does, however,

submit a separate statement of facts relevant to the issues

presented for review and a statement of the reasons why the

writ should not be granted in support of this response.

STATEMENT OF THE CASE

On August 21, 1991, Las Cruces, New Mexico attorney

Jerald A. Valentine telephoned the local District Attorney,

Douglas Driggers, regarding a case of potential criminal

custodial interference. Mr. Valentine told District Attorney

Driggers that he represented Ronald Roberts, the father of two

minor children over whom Mr. Roberts had primary physical

custody. Mr. Roberts and his sons lived in Las Cruces, Dona

Ana County, New Mexico. Petitioner Susan Lynn Roberts had

rights of visitation, including six (6) weeks of summer visitation.

Mr. Valentine informed the District Attorney that in the

summer of 1991, Petitioner requested that Mr. Roberts deliver

the children to her in E] Paso, Texas so she could take them

with her back to her home in Oregon. El Paso adjoins Las

Cruces, and houses the only major airport in the region. Mr.

Roberts drove from Las Cruces to El Paso to deliver the children

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only after agreeing with Petitioner that the children would be

returned to him two days before they were to start school in

Dona Ana County, New Mexico.

Shortly before school was to start, Petitioner told her ex-

husband over the phone that she would not return the children

to him as she had agreed and consistent with the court-ordered

parenting plan. Mr. Roberts promptly reported that conversation

to Mr. Valentine, who contacted Petitioner’s attorney. After

discussions with Petitioner, her attorney informed Mr. Valentine

that the children would be returned to New Mexico on August

21, 1992, and relayed the flight information. Mr. Roberts met

the designated flight, however, the children were not on the

plane.

Mr. Roberts then contacted an Oregon attorney to obtain a

Warrant in Lieu of Writ of Habeas Corpus in Washington County,

Oregon. The warrant commanded that the children be taken

into custody as they were being illegally held by Petitioner.

After attempted service of the warrant on August 21, 1992, the

Oregon attorney informed Mr. Roberts that the deputy sheriff

was told that Petitioner had left her home and had taken the

children to Alaska.

After receiving all of this information from Mr. Valentine,

District Attorney Driggers reviewed the essential elements set

forth in the New Mexico custodial interference statute, and asked

Mr. Valentine additional questions regarding the basis for his

belief that a crime had been committed. He then told Mr.

Valentine that he would send an investigator, Respondent

Timothy Kling, to confirm certain factual allegations presented

to him by Mr. Valentine. District Attorney Driggers believed

that if Mr. Kling was able to verify Mr. Valentine’s allegations,

then probable cause existed to believe that the Petitioner had

committed a crime.

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Respondent Kling verified the specific information

presented to District Attorney Driggers by Mr. Valentine. District

Attorney Driggers then made the decision to prosecute the

Petitioner. The criminal complaint was drafted and approved

by Alfred J. Perez, the Chief Deputy District Attorney and signed

by Respondent. The complaint was then taken to a local

magistrate, who reviewed the complaint for legal sufficiency

and approved the arrest warrant. Respondent then filed the

charges at the direction of the district attorney and the chief

deputy district attorney.

Petitioner was eventually arrested on November 24, 1992

pursuant to that warrant. At the time of her arrest, she had

possession of the two children and had not had additional contact

with Mr. Roberts. Petitioner was extradited to New Mexico,

and a local judge found probable cause for the charges.

Five months later, in July, 1993, Petitioner’s attorney filed

a motion to dismiss based on lack of jurisdiction. There, for the

first time, Petitioner argued that any actions which she had taken

that were the subject matter of the criminal charges were not

taken within the State of New Mexico. The district judge granted

the motion to dismiss, and the State of New Mexico appealed.

The New Mexico Court of Appeals affirmed the dismissal.

Petitioner brought suit against Respondent Kling, alleging

violation of her civil rights pursuant to 42 U.S.C. § 1983, in

the United States District Court for the District of New Mexico.

That court entered summary judgment on behalf of Respondent

Kling, finding that Respondent was entitled to both absolute

and qualified immunity from suit under 42 U.S.C. § 1983.

Petitioner Roberts appealed to the United States Court of Appeals

for the Tenth Circuit. The Tenth Circuit affirmed the ruling of

the district court, holding that Respondent was absolutely

immune from suit. The Tenth Circuit, therefore, did not reach

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the issue of qualified immunity raised as an alternative grounds

for summary judment by the district court.

REASONS FOR DENYING THE WRIT

In a careful and reasoned opinion, the United States Court

of Appeals for the Tenth Circuit affirmed the decision of the

United States District Court for the District of New Mexico

granting Respondent Kling absolute immunity. The Tenth

Circuit’s decision conforms to the well established law of this

Court and is consistent with that of other courts of appeal.

Consequently, there is no compelling necessity for this Court

to grant certiorari so that the Tenth Circuit’s decision can be

reviewed.

The scope of absolute immunity is neither novel nor vague.

This Court has directed lower courts to “examine the nature of

the functions with which a particular official or class of officials

has been lawfully entrusted, and [to] seek to evaluate the effect

that exposure to particular forms of liability would likely have

on the appropriate exercise of those functions.” Forrester v. White,

484 U.S. 219, 224 (1988). As the Tenth Circuit noted in this

case, absolute immunity “is justified and defined by the

functions it protects and serves, not by the person to whom it

attaches.” Roberts v. Klire, 104 F.3d 316, 318 (10th Cir. 1997),

quoting Mee v. Ortega, 967 F.2d 423, 425 (10th Cir. 1992).

This Court has never wavered from its holding in /mbler v.

Pachtman, 424 U.S. 409 (1976) that state prosecutors are

entitled to absolute immunity from suits brought pursuant to

42 U.S.C. § 1983 for activities within the scope of their

prosecutorial duties. /d. at 420. Incorporated within the broad

ambit of prosecutorial duties entitled to absolute immunity are

those activities that are “intimately associated with the judicial

phase of the criminal process,” such as “initiating a prosecution.”

Id. at 430-31.

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This Court has distinguished between those acts which were

purely investigatory from those which were intimately associated

with the judicial phase of the criminal process. Burns v. Reed,

500 U.S. 478 (1991). Thus, the pre-prosecution interview of a

witness by a prosecutor in an attempt to obtain information so

that a probable cause determination might be made is likely not

to be given absolute immunity. See, e.g., Joseph v. Patterson,

795 F.2d 549, 555 (6th Cir. 1986). However, acts such as filing

of a criminal information or whether and when to prosecute are

clearly entitled to absolute immunity. Jmbler v. Pachtman, supra,

424 U.S. at 431, n. 33.

The Tenth Circuit, among others, has held that a

prosecutor’s seeking of an arrest warrant is an integral

component of the decision to initiate a prosecution. Roberts v.

Kling, supra, 104 F.3d at 320 (quoting Lerwill v. Joslin, 712

F.2d 435, 437 (10th Cir. 1983)); Schnecker v. City of Sioux

City, 107 F.3d 662 (8th Cir. 1997); Pinaud v. Suffolk, 52 F.3d

1139, 1150 (2d Cir. 1995); Ehrlich v. Giuliani, 910 F.2d 1220,

1223 (4th Cir. 1990); Joseph v. Patterson, 795 F.2d 549 (6th

Cir. 1986). The reasoning of those decisions is compelling when

the nature of arrest warrants is considered. As the Tenth Circuit

held in Lerwill, supra, “The purpose of obtaining an arrest

warrant is to ensure that the defendant is available for trial and,

if found guilty, for punishment. Without the presence of the

accused, the initiation of a prosecution would be futile. Thus, a

prosecutor’s seeking a warrant for the arrest of a defendant against

whom he has filed charges is part of his ‘initiation of a

prosecution’ under Imbler [v. Pachtman, 424 U.S. 409 (1976)).”

An arrest warrant approved by a prosecutor is not an

investigatory tool. Nor is it the product of ill-considered whim

or the caprice of a police officer. Inherently, a charging decision

has been made by a prosecutor at the time such an arrest warrant

has been issued. Consequently, the arrest warrant is an integral

a a

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component of initiating a prosecution. And even as the decision

of whether or when prosecution should occur is entitled to

absolute immunity, so is the decision of whether, when and

how an arrest warrant should be requested.

The Tenth Circuit’s opinion in this case is in concert with

this Court’s holding in Malley v. Briggs, 475 U.S. 335 (1986).

In Malley, this Court denied absolute immunity to a police officer

who sought an arrest warrant following his investigation of the

defendants. The fact that the petitioner in Malley was a police

officer as is the Respondent herein is not relevant. A

determination as to whether absolute immunity is warranted

must be made by determining the function that the police

officer’s acts serve. The function of the officer’s acts in Malley

was to serve as the sole impetus for the investigation and arrest

of the respondent. Indeed, the officer in Malley investigated the

alleged criminal activity, prepared complaints and arrest warrants

and ther presented them to a judge for signature. No

prosecutorial involvement in the decision to prosecute is

indicated at any point prior to the arrest of the respondents in

Malley.

In this case, the determination to charge Petitioner Roberts

had already been made by the District Attorney, and the

application for a search warrant formally approved by the Chief

Deputy District Attorney. The function of Respondent Kling’s

affidavit was merely to implement the determination to prosecute

Mr. Kling that had already been made by the District Attorney.

Focus on the function of Respondent Kling’s acts, rather

than on the power of the actor or the actual act itself is completely

consistent with this Court’s rulings in Malley, supra and Buckley

v. Fitzsimmons, 509 U.S. 259 (1993). In Buckley, this Court

considered the claim that prosecutors had fabricated evidence

in order to support a prosecution. This Court concluded that

7

the prosecutors’ acts in endeavoring to find out whether certain

bootprints had been made by the plaintiff were made as

investigators looking for clues and corroboration that might

give them probable cause to arrest, and denied the prosecutors

absolute immunity.

In Buckley, as in Malley, the Court’s rulings hinged not on

the actors involved nor their specific acts, but upon the function

of the acts themselves. Thus in Buckley, the Court’s opinion

did not concentrate on the distinction between a prosecutor or

police officer, but rather on the functions of the prosecutor’s

acts. This Court found the prosecutor’s acts in Buckley to be

“entirely investigative in character.” Jd. at 274. The Court

distinguished those investigative acts from the acts of an

advocate by stating that “A prosecutor neither is, nor should

consider himself to be, an advocate before he has probable cause

to have anyone arrested.” /d.

In this case, there is no dispute that District Attorney

Driggers and Chief Deputy District Attorney Perez had made a

probable cause determination prior to ordering Respondent

Kling to seek an arrest warrant. Their decision was consequently

in their role as advocates rather than as investigators. The

function of Respondent Kling’s act of signing the arrest warrant

he was instructed to obtain was to assist prosecutors acting in

their role as advocates. As such, he is entitled to absolute

immunity.

The Tenth Circuit’s holding in this case followed the well

established, functional analysis dictated by this Court.

Accordingly, the result which the Tenth Circuit obtained from

that analysis is appropriate and consistent with law. The Tenth

Circuit examined the function of Respondent Kling’s acts. It

found that any material act of Respondent Kling was performed

after the complaint that established probable cause was signed

by the prosecutors. Consequently, the Tenth Circuit was able

to determine, consistent with this Court’s holdings, that the

function of any acts of Kling was consistent with the

prosecutor’s roles as an advocate, and thus entitled to absolute

immunity.

Petitioner seeks to have this Court reweigh the Tenth

Circuit's evaluation of the function of Respondent Kling’s acts.

The ambit of the law related to absolute immunity is well settled

and clear. There is no compelling interest of justice in having

this Court reweigh the well reasoned and specific determination

in a well settled area of law.

Protection of the absolute immunity accorded to the

prosecutor’s advocacy function is essential to the administration

of justice. To diminish that protection would cause the public

trust of the officer to suffer, since the prosecutor would be

constrained in making every decision by the consequences in

terms of his own potential liability in a suit for damages. /mbler,

supra, 424 U.S. at 424. This Court has already weighed that

balance, and determined that absolute immunity of prosecutors

and their agents acting in the role of advocates, after probable

cause has been determined, is appropriate and necessary.

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CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Re .pectfully submitted,

MARK D. JARMIE

Counsel of Record

SHARP, JARMIE & SCHOLL, P.A.

Attorneys for Respondent

500 Marquette, N.W.

Suite 1360

Albuquerque, New Mexico 87102

(505) 842-5050

DAVID C. IGLESIAS

Director, Legal Bureau

State of New Mexico Risk

Management Division

1100 St. Francis Drive

P.O. Drawer 26110

Santa Fe, New Mexico 87502-6110

(505) 827-2202

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