Opposition Brief — Buckley v. Ellis

Supreme Court brief1990

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— EL eR FRAME CR Tay, ON AGS OREO es RN SN On ANU es ace ae eee

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No. 90-191

In The

Supreme Court of the United States

October Term, 1990

DAVID M. BUCKLEY and

JOHN E. REID AND ASSOCIATES, INC.,

an Illinois corporation,

Petitioners,

TAMMIE R. ELLIS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF

CERTIORARI TO THE COLORADO

COURT OF APPEALS

Joun G. SALMON |

Counsel of Record s

Mark L. ANDERS :

FRANCINE R. SALAZAR

SALMON, GODSMAN &

NICHOLSON, P.C.

Salmon Law Building

7450 E. Progress Place

Englewood, CO 80111

Counsel for Respondent

RESTATEMENT OF QUESTIONS PRESENTED

i. Whether this Court has jurisdiction

where no constitutional or federal question

was ever raised in either the Colorado trial

or appellate courts.

2. Whether Colorado law violates due

process by allowing the jury to award punitive

damages under adequate standards provided by

Colorado statutes, jury instructions, and case

law?

3. Whether Colorado law violates due

process by allowing the jury to award both

punitive damages and separate compensatory

damages for intentional infliction of

emotional distress (outrageous conduct) under

appropriate circumstances?

4. Whether the award of punitive damages

was both warranted and reasonable under the

unique facts of this case.

S. Whether any alleged violation of due

process in this case was cured by the

remittitur granted by the trial court, and

Colorado appellate judicial review of the

awards for outrageous conduct and punitive

damages under Colorado statutes and common

law?

6. Whether all issues presented are now

moot as a matter of law.

TABLE OF CONTENTS

PAGE

RESTATEMENT OF QUESTIONS PRESENTED... i

TABLE OF CONTENTS........2220eceee00. ii

TABLE OF AUTHORITIES...... ceneeeeeee 223

SUMMARY OF REASONS FOR DENYING THE

PETITION... .cccccccccccccccces eececes 1

STATEMENT OF THE CASE......... cececee 4

I. INTRODUCTION.......... coccccece 4

II. STATEMENT OF FACTS........... 11

ARGUMENT/REASONS FOR DENYING THE

PETITION. .ccccccccccccccccccccccccce 31

I. PETITIONERS HAVE MISSTATED THE

EVIDENCE Sete eee eee eee were ewer eens 31

II. THIS COURT LACKS JURISDICTION. .33

III. DEFENDANT-PETITIONERS HAVE

MISSTATED THE FACTS, EVIDENCE AND

LAW OF THIS CASE TO CONFORM THEM TO

ANOTHER CASE PRESENTLY BEFORE THE

COURT UNDER VERY DIFFERENT FACTS...41

IV. EVEN ASSUMING ARGUENDO THAT A

PROPER ISSUE UNDER FEDERAL LAW EXISTS,

THE STANDARDS FOR THE IMPOSITION OF

EXEMPLARY DAMAGES UNDER COLORADO

STATUTES, JURY INSTRUCTIONS AND CASE

LAW ARE CONSISTENT WITH THE DUE

PROCESS CLAUSE AND THE HOLDINGS OF THIS

COURT. THE CASES CITED BY PETITIONERS

ii:

ARE WHOLLY DISTINGUISHABLE AND NOT

CONTROLLING. THE EXEMPLARY DAMAGES

AWARDED BY THE JURY IN THE PRESENT

CASE ARE NOT GROSSLY EXCESSIVE, ARE

CLEARLY REASONABLE, AND ARE IN AN

APPROPRIATE RATIO TO THE

COMPENSATORY DAMAGES ALSO AWARDED

BY THE JURY... ccccccccccccccccccccec43

Vv. THE AWARD OF BOTH "EXEMPLARY" OR

"PUNITIVE" DAMAGES (TO PUNISH THE

WRONGDOER AND SET AN EXAMPLE) AND

DAMAGES FOR OUTRAGEOUS CONDUCT

(COMPENSATORY DAMAGES FOR INJURIES

CAUSED BY INTENTIONAL OR RECKLESS

INFLICTION OF EMOTIONAL DISTRESS) IS

IN NO SENSE A “DOUBLING UP", DOES NOT

VIOLATE DUE PROCESS OR EQUAL

PROTECTION, AND DOES NOT EVEN RAISE

A CONSTITUTIONAL QUESTION.......... 51

VI. ALL VIABLE ISSUES ARE NOW MOOT

AS A MATTER OF LAW.........cecccene 54

CONCLUSION... ccc cccccccccccce cocccccce 56

TABLE OF AUTHORITIES

Case Page

Allegh ounty v. Frank Mashuda Co.

Pee nee SE EEDEO) oc cccceccoecececese 37

Beebe v. Pierce, 185 Colo. 34, 521 P.2d

re oe cee ccoecesseee 45

Big O Tire Dealers, Inc. v. Goodyear

Tire & Rubber Co., 408 F.Supp. 1219

(D.Colo. 1976), modified on other

grounds and aff'd, 561 F.2d 1365

(10th Cir. 1977), cert. denied,

636 GiB. BORD Beicars cutkenss jevet, 69

rowning- is stries v. °

Disposal, inc., 492 U.S. _., 109

S«Gee 2909 8 rr

Carlson v. Green, 446 U.S. 14, 22 n.9

Ce so 6 660k bas Oe 6-66 be ceweec eee

Coale v. Dow Chemical Co., 701 P.2d

S885 (Colo. App. 1985) ..ccccccccccccce +46

Comstock v. Group of Institutional

Investors, 335 U.S. 211 (1948)........ 38

Cuyahoga River Power Co. v. Northern

Ohio Traction & Light Co., 252 U.S.

388 SES b 6606S dS O86 6 0 obs 66s debse ec 0c fi

DeBacker v. Brainard, 396 U.S. 28

CRPGP RP ccecccccvce *eef #8 © @ e*eeeerseeeeeeses#eee#e 55

DeCicco v. inidad Are th

Association, 573 P.2d 559 (Colo. App.

Lrg i Pee eee eT eee CEE TS PT TE TTT TTT T TT Tee

Dick v. New York Life Ins. Co.,

359 i F 437 CAPD cesenesecocceoeeesed®

E.F. Hutton & Co. v. Anderson, 42 Colo.

App. 497, 596 P.2d 413 (1979)......45,48

Enright v. Graves, 560 P.2d 851

(Colo. BOTT cc ccesccccsssccececsc + 04$,52,54

First National Bank of Arizona v.

Cities Service Co., 391 U.S. 253 (1968),

rehearing denied 393 U.S. 901 (1968)..55

Fletcher v. Western National Life

Insurance Co., 89 Cal. Rptr. 78 at 95

(C.A. 4th Dist., 1970) ccccccccccccceeeD3

Frick v. Abell, 602 P.2d 852 (1979)...47

Gilardi v. Schroeder, 672 F.Supp. 1043

(N.D. 3h 19BG6) cccccccccccccscsesecesseds

Hull v. Burr, 234 U.S. 712 (1914).....36

Kimball v. Kimball, 174 U.S. 158

(1699) ccccccccccccccccccsccccccscccceene

Knierim v. Izzo, 22 Ill. 2d 73, 174 N.E.

2G 187 (1961) cccccccccccccccccsccscsdagra

Leidhold v. District Court, 619 P.2d

768 (Colo. 1980) .cccccecccs *eesees? re |

Little v. Bowers, 134 U.S. 547 (1890).55

Lynk v. LaPorte Superior Court No. 2,

789 F.2d 554 (CA 7 Ind. 1986)........+39

Mailloux v. Bradley, 643 P.2d 797

(Colo. App. 1982)... ccc eee receee eee cdl

sce ,

Fenner & Smith, 703 F.2d 1152

(1981) ..ccccccccccccccecs eeeeeeeese#seres* -9,53

Mayor of City of Philadelphia v.

Educational Equality League, 415 U.S.

605 (1974) cccccccccescccsscccscccccseed&

Meiter v. Cavanaugh, 580 P.2d 399

(Colo. 1978) ccccccccccccccescsccscccsesee

Mince v. Butters, 200 Colo. 501,

Che Wale Se CeO cc ceweodtericessdes cH

Montgomery Wards Co., Inc. v. Andrews,

736 P.2ad 40 (Colo. App. 1987).......8,51

New Haven Inclusion Cases, 399 U.S.

392 (1970) .ccccccccccccccccccccccccccedl

New York Times v. Sullivan, 376 U.S.

254 (1964) .cccccscccccccccccccscscccceceS

Pacific Mutua] v. Haslip, 110 S.Ct.

1780, 108 L.Ed. 2d 782,

April 2, 1990..........-5,34,41,42,43,48

Palmer v. A.H. Robbins Co., Inc.,

684 P.2d 187 (Colo. 1984).....9,46,47,48

Parker v. McLain, 237 U.S. 469 (1915) .36

Rescue Army v. Municipal Court of

Los Angeles, 331 U.S. 549 (1947)....... 6

Rohr Aircraft Corp. v. County of San

Blame, 362. UB. CBO (1960) .cccccccceced®

Ru v. McCa , 173 Colo. 170, 476

P. 2d 753 (1970) *ewnereereneeees#* *# * @ ne ffteereeeeeesee# @ 52

Safeway Stores, Inc. v. Oklahoma _

Reta G , 360 U.S.

334 (1959) .cccccce err; enetene es *¢ ft © © @ neaee cue

San Juan Light & Transit Co. v. Requena,

Pt: 2 BORER «wos nes cen 6énebeunue

She Vv , 334 U.S. 1 (1948) .37

Sk Oi

as See ies BEe (SRO becccccecccesced?

Socialist Labor Party v.Gilligan,

406 U.S. 583 CIDT2) cccccccccccccccccceeS

vii

Specht v. Jensen, 832 F.2d 1516 (10th

Cir. UOST ) cccccccccccceccese *eneteneeneeneeee 51

Spiegel's Estate v. C.I.R., 335 U.S.

701 CUDEO) ccocccccsccccccccccscceccesccenl

38 Cal.2d 330, 240 P.2d 282 (1952)....53

Tacon v. Arizona, 410 U.S. 351 (1973).31

Texas & P.R.Co. v. Abilene Cotton Oil

Co., 204 U.S. Pe Petebeneeaecceseeeanorneseoun

Thomas v. Taylor, 224 U.S. 73 (1912)..38

United Rys & Electric Co. of Baltimore

v. West, 280 U.S. 234 (1930) eccccccceedl

UNR Industries, Inc. v. Continental

Ins. Co., 607 F.Supp. 855 (D.c. Ill.

1984) enrnereeneenee eeeee eee ef © © eneree ne eneeeeef © 53

U.S. _v. Durham Lumber Co., 363 U.S.

SAS CASS) ccccccceceseccccccccseceseces 37

U.S. v. Kimball Foods, Inc., 440 U.S.

715 (1979) *enereseineneneneeeeeee e © #eeees#ee#e#seeee##* 37

Walford v. Blinder, Robinson and Co.,

Inc., 793 P.2d 620 (Colo.App.1990) .46,47

Weade v. Dickmann, Wright & Pugh,

sk a peepee 36,38

Wegner v. Rodeo Cowboy's Ass'n, 290 F.

Supp. 369 (D.Colo. 1968) aff'd and

rehearing denied, 417 F.2d 881 (10th

Cir. 1969), cert. denied, 398 U.S. 903

(1970) ccccccccccececs ne of feeeeees © @ 48,52

Williams v. U.S., 341 U.S. 97 (1951)..55

viii

Statutes Page

2B U.S.C. §$1251(a) occ cccccccccccccccccedd, 34

28 U.S.C. §1257......202626222222,5,34,39,41, 58

28 Bebo CSe De En 6.0 66 66060 606es20bbe0000604

29 U.S.C. §2001, et. seg, Employee Polygraph

Protection Act of 1988............++4,7,8,54

C.R.S. §13-21-102............3,7,41,43,48, 54

C.R.S. §13-21-102(1)(a) (1987 Repl.vVol.

Pee ey yy ct ty ee eee ey Pee Pes 6 ort ee ee

Other Authorities Page

American Constitutional Law, Tribe, 861 -

nn ae nceesnec 7

Colorado Appellate Rules (Rule 54)........ 35

Colorado Jury Intructions - Civ. 2d 5:3

| Ra Veniin Sach neste when ne tows 44

Restatement (Second) of Torts, §46

Pe 6 hb ono 6dbbbo 00s obedbb 6abb ooo ckced 8,52

Rules of the Supreme Court of the United

States, Rule 10...... peececeesseenese 2,39,54

NO. 90-191

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

DAVID M. BUCKLEY and

JOHN E. REID AND ASSOCIATES, INC.,

an Illinois corporation,

Petitioners,

vs.

TAMMIE R. ELLIS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF

CERTIORARI TO THE COLORADO

COURT OF APPEALS

This case comes before the Court on a

Petition by defendants-appellants below, for a

writ of certiorari.

SUMMARY OF REASONS FOR

DENYING THE PETITION

The petition provides no adequate reason

for this Court to grant certiorari and should

be denied for the following reasons:

is Petitioners have presented no special

or important reasons for granting a review on

writ of certiorari pursuant to Rule 10 of the

Rules of the Supreme Court of the United

States (1990). To the contrary, Petitioners

have grossly misstated the facts and are

attempting, for the first time, to convert

disputed factual issues which have been

resolved against them by a jury and affirmed

by a state appellate court into novel

constitutional questions.

Ze This Court lacks jurisdiction since no

federal question has ever been previously

raised in a Colorado trial or appellate court,

thereby divesting this Court of jurisdiction

pursuant to 28 U.S.C. §1257.

3. Even assuming arguendo that a proper

issue under federal law exists, the standards

for the imposition of exemplary damages under

Colorado statutes, jury instructions, and case

law are consistent with the due process clause

and the holdings of this Court. The cases

cited by Petitioner are wholly distinguishable

and not controlling. The exemplary damages

awarded by the jury in the present case are

not grossly excessive, are clearly reasonable,

and are in an appropriate ratio to the

compensatory damages also awarded by the jury.

4. The award of both exemplary or

punitive damages (to punish the wrongdoer and

set an example) and damages for outrageous

conduct (compensatory damages for injuries

caused by intentional or reckless infliction

of emotional distress) is in no sense a

"doubling up", does not violate due process,

and does not even raise a constitutional

question.

5. All viable issues are now moot as a

matter of law. Colorado amended C.R.S. (1973)

§13-21-102 in 1986 to provide an even more

detailed statute covering punitive damages,

and the Federal Government has pre-empted the

area of civil law addressed on this action by

passing the Employee Polygraph Protection Act

of 1988, 29 U.S.C. §2001, et. seq.

STATEMENT OF THE CASE

I. INTRODUCTION

Petitioners asserted the issues of due

process and equal protection for the first

time after they had exhausted their appellate

rights in the Colorado judicial system.

Following the denial of their Petition for

Certiorari to the Colorado Supreme Court, they

moved on the 10th day of May, 1990, for the

Colorado Supreme Court to reconsider its

denial. Since Colorado Appellate Rules

provide for no Petition for Reconsideration

with regard to a denial of a Petition for

Certiorari, on May 11, 1990, the Petition for

Reconsideration on Denial of Petition for

Certiorari was stricken by the Colorado

Supreme Court. Simply stated, raising

constitutional issues in this manner was "too

little and too late". At no time during the

entire appellate process in the Colorado Court

of Appeals, or in their actual Petition for

Certiorari to the Colorado Supreme Court, did

Petitioners ever raise the constitutional

issues now presented to this Honorable Court

for the first time.

This Court, therefore, lacks jurisdiction

Since no federal questions have previously

been properly raised in the Colorado trial

court, Colorado Court of Appeals, or in the

Colorado Supreme Court, as required pursuant

to 28 U.S.C. §1257. Stated otherwise, and

quite frankly, Petitioners first thought of

asserting constitutional issues after becoming

aware of the fact that this Court had granted

certiorari in a totally different case,

Pacific Mutual v. Haslip, 110 S.Ct. 1780, 108

L.Ed.2d 782, cert. granted April 2, 1990.

Petitioners are attempting, for the first

time, to convert into novel constitutional

questions disputed factual issues which were

resolved against them by a jury and affirmed

by the Colorado Court of Appeals. Petitioners

now raise constitutional claims that are so

vaguely formulated and so lacking in

theoretical focus' that a favorable ruling on

Petitioners' behalf would generate more doubt

about the award of punitive damages that it

could ever hope to resolve. Such a ruling

would do so without the offsetting benefit of

having (in this case) a reasonable framework

from which to instruct the states about how to

bring a law of punitive damages into

compliance with federal constitutional

standards. A series of clarifying and

qualifying decisions from this Court’ would be

"Constitutional issues must be

presented in clear cut and concrete form

so that this Court can know exactly the

elements of state law that are being called

into question. See, Rescue Army v.

Municipal Court of Los Angeles, 331 U.S.

549 (1947); Socialist Labor Party v.

Gilligan, 406 U.S. 583, 589 (1972).

* Perhaps the most apt illustration

of this is the CcCeurt’s

constitutionalization of the law of the

defamation in New York Times v. Sullivan,

376 U.S. 254 (1964). In the intervening

years, the Court has had to consider and

a ee ER

needed at a time when its dockets are heavily

burdened and state legislatures throughout the

country are effectively engaged in "tort

reform", an important element of which is the

examination of procedures and standards

associated with the award of punitive

damages.*° The exemplary damages awarded by

the jury in the present case are not

excessive, are clearly reasonable, and are in

appropriate ratio with the compensatory

damages also awarded by the jury.“ The

Federal government has now passed the Employee

Polygraph Protection Act of 1988 pre-empting

this entire area of law to prevent the type of

decide many cases dealing with the scope of

the New York Times rule. Tribe, American

Constitutional Law, 861-890 (2nd Ed. 1988).

* Colorado is one of the states that

has enacted tort reform measures

concerning, inter alia, punitive damages.

They became effective July 1, 1986. See,

C.R.S. §13-21-102, as amended.

*“ The compensatory to punitive ratio

is approximately one to one (one to two

following court ordered remittitur).

abuse suffered by the plaintiff, thereby

rendering all issues raised by Defendant-

Petitioners non-viable and moot.°®

The award of damages for the tort of

outrageous conduct’® are compensatory damages

for injuries caused by intentional or reckless

infliction of emotional distress.

Compensatory damages may be assessed on one

who, by extreme or outrageous conduct,

intentionally or recklessly causes severe

emotional distress to another subjecting him

to liability for such emotional distress.’

Exemplary or punitive damages are awarded to

See 29 U.S.C. §2001, et. seg.

° Montgomery Wards Inc., Co. v.

Andrews, 736 P.2d 40 (Colo. App. 1987)

(1965)

Restatement (Second) of Torts, §46

a ee

punish the wrongdoer and to set an example.*

The award of damages for outrageous conduct

and punitive damages does not create a

"doubling up" of damages nor does it violate

due process.’°

The facts, evidence and law of the case

more than adequately support the verdict in

this case. The Defendants stipulated to David

Buckley's agency. All the experts including

Defendants' experts agreed that the results of

the polygraph were inconclusive, yet Buckley

failed Plaintiff causing her severe financial

er _v. -H. Robbins a

684 P.2d 187 (Colo. 1984); Big O Tire

Dealers, Inc. v. Goodyear Tire & Rubber

Co., 408 F.Supp. 1219 (D. Colo. 1976),

modified on other grounds and aff'd, 561

F.2d 1365 (10th Cir. 1977), cert denied,

434 U.S. 1052 (1976)

®° Prohibition against double jeopardy

relates to criminal or quasi criminal

proceedings and not to a civil lawsuit

involving an ancillary claim for punitive

damages.

Palmer v. A.H. Robbins Co., Inc.,

684 P.2d 187 (Colo. 1984); Malandris v.

SET Sek: Dies sunear a baiin,

Inc., 703 F.2d 1152, cert.denied, _— U.S.

824 (C.A. Colo. 1981).

and emotional harm. He interrogated her

mercilessly for over two hours. His abuse of

authority, and his reckless, willful and

wanton disregard for Tammie's rights and

feelings, caused the jury to award appropriate

punitive damages, as well as compensatory

damages for her economic loss and emotional

stress caused by his outrageous conduct. The

ratio of compensatory damages to punitive

damages awarded by the jury is approximately

"one to one" and is, therefore, appropriate on

its face, especially in light of the fact that

Buckley interrogated a young, pregnant, naive

and deeply religious girl for 2 to 3 hours

after misreading his own graphs with the

intention of verbally beating a confession out

of her. After a remittitur by the trial

court, accepted by Respondent, the ratio of

compensatory to punitive damages was still a

reasonable ratio of one-to-two

($59,400:$125,000). Furthermore, there were

other witnesses (e.g., Debra Troppman) who

testified that Buckley had handled their

polygraph examinations in a similarly callous

manner, as well as additional evidence that

the thefts in question were committed by

others who had ultimately paid restitution.

2 ee STATEMENT OF FACTS

A. Plaintiff's Employer's Use of

Po] - ieminetion tarinn tent —_e

In their Brief, Petitioners significantly

misstate the results of the scoring of Tammie

Ellis' polygraph examination. Petitioners

state that David Buckley reported merely that

there were "significant emotional responses

indicative of deception" when Tammie Ellis was

asked questions about stealing merchandise and

money from Fashion Bar. Buckley, in fact,

reported that Tammie lied in her responses to

those questions, stating in his report that:

It is the opinion of the

examiner, based on this subject's

polygraph records, that she is not

telling the truth on [these]

questions. (Emphasis Added.)

(Vol.X,Ex.1 and la; Tr.Vol.IV,p.590.)

In contrast, each expert called by both

parties at trial testified that their scoring

of Tammie Ellis' polygraph charts was

inconclusive, meaning that there was no clear

indication of either truth or deception

(Tr.Vol.II,pp.281-285;Vol.III,p.318;Vol.IV,p.

630;Vol.V,p.738).

This testimony was extremely significant,

since it was Plaintiff's employer's policy to

treat "inconclusive results" as a "pass". A

failure, on the other hand, resulted in

immediate termination.

B. Background of Tammie Ellis.

Tammie Ellis grew up in Denver and

graduated from Temple Baptist High School in

Denver in 1981. During her upbringing and in

recent years, much of her life has revolved

around church activities. She normally

attends church services and activities three

or four times per week, and currently attends

Tri-Town Baptist Church (Tr.Vol.I,pp.90-93).

Tammie Ellis began working in 1981,

immediately after graduating from high school.

Her first job was as a cashier and cook at a

K-Mart cafeteria. After her marriage in 1982,

she took a job as a collator and secretary for

Allied Computer in Littleton, Colorado. The

job lasted approximately one year, until the

company shut down. (Tr.Vol.I,pp.90-95).

At the time she applied for a job at

Fashion Bar in May, 1983, Tammie Ellis was 20

years old. She had, for two years, held jobs

requiring her to handle or have access to

substantial amounts of money. Her reputation

for honesty and truthfulness, which was

extremely important to her, had never been in

doubt. (Tr.Vol.I,pp.90-97).

According to Bob Ellis, Tammie's husband,

Tammie's reputation was "the most important

thing to her in the world." Robert Rourk,

pastor of Tri-Town Baptist Church, testified

that Tammie was one of the most honest people

he had ever met and that she was "very

concerned" about her reputation for honesty

and integrity (Tr.Vol.II,pp.180-189).

Almost immediately after she began working

as a cashier at Fashion Bar, Tammie became

aware that cash shortages at Fashion Bar were

“an ongoing problem". The shortages continued

throughout the next year. Approximately eight

months after she began working at the store,

Tammie was informed by store personnel that

she and other employees would have to take a

polygraph examination. She knew that

cooperating with the store in taking the

polygraph was a condition of her continued

employment with Fashion Bar and she agreed to

take the test without hesitation. (Tr.Vol.I,

pp.99-101).

C. Examination by David Buckley.

The polygraph examination of Tammie Ellis

was performed on February 2, 1984. Tammie

arrived at the offices of John Reid and

Associates at approximately 2:30 p.m. The

examination began 15 minutes later

(Tr.Vol.I,pp.102-103).

The examination room was small. Only

Tammie and David Buckley were present. Before

Tammie was “hooked up" to the polygraph

machine she informed Buckley verbally she

might be pregnant (as it turned out she was,

even though she had checked "no" on his

questionnaire.) Buckley then asked her

whether she had ever stolen anything in her

life. Her response was that the only thing

she had ever stolen in her life was a piece of

gum. Buckley, apparently not believing the

response to this initial question, told Tammie

that "nobody's that honest" and repeatedly

questioned her on what else she had stolen in

her lifetime. She repeatedly denied that she

had ever stolen anything except a piece of

bubble gum. In Tammie's view, Buckley "didn't

believe me from the start" (Tr.Vol.II,pp.104-

126.)

The polygraph test lasted 15-20 minutes.

After the polygraph test was concluded,

Buckley informed Tammie that she had failed

the test. He then began his interrogation of

her (Tr.Vol.I,pp.107-109).

David Buckley's interrogation of Tammie

Ellis lasted two to three hours (Tr.Vol.I,pp.

112-113; Vol.IV,p.593). Buckley did most of

the talking, not allowing Tammie any

significant time to respond (Tr.Vol.I,p.112).

To Tammie, it appeared that David Buckley

had made up his mind about her. He refused to

believe anything she was saying. He was

excited, and was "short and sharp" with her.

He "wanted a confession from me that I

couldn't give." (Tr.Vol.II,P.126).

As the hours went by, Buckley continued to

press Tammie on what she might have "stolen"

from Fashion Bar that could have caused the

negative responses on the polygraph test.

Tammie told Buckley she exchanged wheat

pennies from the cash register with pennies of

her own. Buckley accused her of stealing

them, which Tammie denied. (Tr.Vol.I,p.111).

Tammie also told Buckley that she had, with

the permission of her manager, deferred paying

ten cents for a bag of potato chips from the

Fashion Bar employees’ break room. She later

repaid the ten cents and didn't regard the

incident as "stealing" (Tr.Vol.I,p.112).

As the interrogation dragged on, Tammie

began to cry. She felt that despite her

honesty with Buckley, he clearly did not

believe her. Rather, he persisted in accusing

her of stealing from her employer

(Tr.Vol.II,p.127). Buckley noted on his

charts that he felt Tammie's tears were "phony

and inappropriate." (Tr.Vol.III,p.363).

The interrogation finally ended after 6:00

p.m., over an hour after the offices of John

Reid and Associates had closed (Tr.Vol.I,p.

114). According to Tammie, Buckley stopped

his questioning only after somebody came to

the examination room and told Buckley that it

was after 6:00 p.m. and that Tammie had to

leave. Bob Ellis, Tammie's husband, had been

waiting for Tammie. After the receptionist

left at 5:00, Bob tried the door to the

examination room and found it locked. After

6:00 p.m., he finally saw someone in the back

room and asked him to check to see if the

examination was over

(Tr.Vol.I,p.114;Vol.II,p.178).

At no time did David Buckley advise Tammie

that she could leave the room, and she did not

feel that she was free to leave the room as

long as Buckley was talking to her (Tr.Vol.I,

pp.108-113).

At trial, David Buckley testified that he

might well have continued his interrogation of

Tammie had she stayed longer. At the time

Tammie left the examination room, crying,

Buckley told her that he thought the longer

she sat in the room with him, the more he

could "get out of her" (Tr.Vol.II,p.128;

Vol.IV,p.596).

D. David Buckley's Report to Fashion Bar.

Following his polygraph examination of

Tammie Ellis, David Buckley made a written

report of his findings to Fashion Bar. In his

report, Buckley stated that he had asked

Tammie whether she had stolen merchandise or

money from Fashion Bar, or knew anyone who

had. Tammie‘'s answers to each one of these

questions was "no" (Tr.Vol.III,p.364). In his

conclusion to the report to Fashion Bar, he

wrote that, "It is the opinion of the examiner

based on the subject's polygraph records that

she is not telling the truth" with regard to

stealing merchandise or money from Fashion

Bar, or knowing someone who had (Tr.Vol. III,

p.364).

He also reported she admitted stealing

pennies and potato chips (vol. x, Ex.1 and 1a)

which is a blatant misstatement of the facts.

(Tr.Vol.III,p.410).

At trial, Buckley acknowledged that he

could not tell from the examination whether

the reaction he saw on Tammie Ellis' polygraph

results were caused by her concerns over the

exchange of wheat pennies, her concerns over

borrowing ten cents for potato chips, or

whether it was related to more important

matters. He never stated in the report that

Tammie's apparent "deception" was anything

less than an indication that she had been

stealing significant amounts of money and/or

merchandise from Fashion Bar

(Tr.Vol.III,p.365).

Buckley contended that he reported orally

to Larry Neumayr, director of loss prevention

for Fashion Bar, that his conclusions might

merely reflect Tammie's concerns over

ey eee

exchanging wheat pennies, or borrowing ten

cents for potato chips (Tr.Vol.III,p.388).

This testimony was directly contradicted by

Larry Neumayr, who testified at trial. Mr.

Neumayr testified that Buckley told him only

that Tammie had failed the test, and that she

had admitted "stealing" wheat pennies and

potato chips (Tr.Vol.III,p.410). Buckley never

told him that Tammie could have "failed"

merely because of her concerns about the wheat

pennies and potato chips (Tr.Vol.III,p.410).

In fact, from the report tendered by David

Buckley, Mr Neumayr assumed that tiuere were

"serious reasons" why Tammie Ellis didn't pass

the test. If, in fact, Tammie had failed the

test merely due to her concerns over a bag of

potato chips and exchanging wheat pennies, Mr.

Neumayr would have met with her and worked out

the problem (Tr.Vol.III,pp.468-471).

After the test, Tammie's father, Richard

Farmer, called Buckley to ask about a re-test.

Buckley informed him that the re-test would

cost $300, more than twice the amount that

Fashion Bar had been charged for Tammie's

initial examination (Tr.Vol.III,pp.369-370).

E. Emotional Distress and Economic Damage

Suffered ammie is.

When Tammie Ellis walked out of the

examination area, her husband Bob could tell

she had been crying. Bob Ellis described his

wife as "fractured" following the examination

(Tr.Vol.II,pp.179-180). She was scheduled to

return to work following the test, but was too

upset to do so ("I was upset because I had

been accused of something I knew I didn't do,

and I just could not work") (Tr.Vol.II,p.128).

When Tammie returned to work the following

day, she was treated "like a criminal". She

was told to stay away from the cash registers,

to stay away from the men's apparel desk, and

not to tell anyone what had happened. (Tr.Vol.

II,p.130). She was told to give up the

Fashion Bar pen she was holding so the pen

wouldn't be taken (Tr.Vol.II,p.129). That

afternoon, she was told she was suspended for

three days for failing the polygraph test.

(Tr.Vol.II,p.131).

After the three day suspension, Tammie

again returned to Fashion Bar. At that time,

she was fired because of the polygraph

results. She was told to gather her

belongings and leave immediately

(Tr.Vol.II,pp.132-135).

Subsequent to her firing, Tammie requested

a copy of the report Fashion Bar had received

from Buckley. She received it ten days after

her termination and had to pay Buckley $3.00

to get it. After reading the report, Tammie

"Just felt crushed". In addition to stating

that she had lied about stealing merchandise

and money from Fashion Bar, the report

inaccurately stated that she had admitted

"stealing wheat pennies and potato chips".

("I knew I was honest and this letter says I'm

not. It just destroyed anything I had that

was important to me...") (Tr.Vol.II,pp.136-

138).

For the two weeks following her termination

from Fashion Bar, Tammie refused to leave her

home. She refused to go anywhere. It took

the family two weeks to get her to go out and

walk around the block. She was depressed,

and, according to her husband, "cooped up in

her own little world." She withdrew from

family and friends, and was embarrassed to go

out in public (Tr.Vol.II,pp.137-140,181-182).

Tammie felt that Buckley's report had

reached Fashion Bar managers, who would always

regard her as "a liar and a thief." To this

day she avoids the Northglenn Mall and will

not go near a Fashion Bar. (Tr.Vol.II,p.142).

After receiving the report, Tammie sought

counseling from her pastor, Robert Rourk. He

recalled her as being "very concerned and

pretty shaken up". She was worried not only

about a "flaw in her record," but that despite

her innocence, “other people would believe

that perhaps she was guilty". Tammie

continued to see Pastor Rourk on occasions

when she "got depressed and real down". In

Pastor Rourk's opinion, Tammie suffered

permanent and irreparable emotional damage as

a result of the incident ("I assure you that

as I know her, that it is something that she

is going to suffer for probably the rest of

her life to a degree, even if the thing were

cleared up...") According to her husband Bob,

Tammie “to this day sometimes mentally locks

herself up in her room." (Tr.Vol.II,pp.149,

190-193).

Several years after the incident, Buckley's

report still affected Tammie's self-confidence

and ability to obtain employment. After the

birth of her child, Tammie's family had to

"push" her into going out to apply for jobs.

Tammie felt she had to be honest on job

applications and indicate that she had been

fired by Fashion Bar (Tr.Vol.II,pp.142-148).

As a result, she was unemployed for “about a

: 25 :

Ne ee TS ee ee ETT ET

year" due to her inability to get a job

(Tr.Vol.II,p.147).

Tammie's termination from Fashion Bar

caused the Ellis family substantial financial

hardship. At the time Tammie was fired, Bob

Ellis was in school training to be a police

officer. As a result of her terminaticn, he

had to quit school and take a job in order to

support his family. Bob and Tammie were

forced to borrow money from their parents in

order to pay their mortgage. They "got

behind" on bills and lost their good credit

rating. Having lost the medical benefits that

were part of her employment at Fashion Bar,

Tammie had to pay the costs associated with

the birth of her child, which amounted to

approximately $3,000 (Tr.Vol.II,pp.143-146).

F. Expert Testimony.

Cleve Backster. Plaintiff's expert

witness, Cleve Backster has been involved in

the polygraph field for 39 years, and has

taught polygraphy to both the CIA and the FBI.

He has consulted with numerous governmental

agencies that use polygraph, and co-founded

the National Training Center of Lie Detection

in New York City. He has directed 119

polygraph courses, has been involved in well

over 50,000 polygraph cases and is a charter

member of the American Polygraph Association

(Tr.Vol.II,pp.204-208, 234-239).

In Cleve Backster's opinion, David Buckley

acted below the standard of care for polygraph

examiners in finding that Tammie Ellis lied

when she stated she had not stolen any

merchandise or money from Fashion Bar. [In Mr.

Backster's opinion, the charts of Tammie

Ellis' polygraph examination were clearly

inconclusive, meaning that there was no clear

indication one way or the other as to truth or

deception (Tr.Vol.II,pp.281-284).

Mr. Backster was familiar with the Reid

technique and the Reid checkmark scoring

system which differs slightly from the

numerical method that is customarily used in

the industry, and which he introduced in 1959.

Regardless of whether the Reid checkmark

method or numerical scoring was used, however,

SEE —

it was Mr. Backster's opinion that “any

competent examiner" reading Tammie Ellis'.|

polygraph charts would conclude that the

polygraph results were inconclusive, rather

than indicative of deception (Tr.Vol.II,

pp.288, 295 and 302).

2. Joseph B. Smith. Joseph Smith, also

called to testify on behalf of Tammie Ellis,

owns and runs Aurora Polygraph and Consultant

Services, Inc. He has performed over 8,000

exams since 1974, both for his business and

for the Adams County Sheriff's Department. He

is a member and past president of the Colorado

Association of Polygraph Examiners }

(Tr.Vol.II,pp.307-313).

Mr. Smith testified he was familiar with

the checkmark scoring system used by David

Buckley in his scoring of Tammie Ellis'

polygraph examination. In Mr. Smith's

opinion, the charts of Tammie Ellis' polygraph

examination were clearly inconclusive, and, as

such, it was substandard for David Buckley to

report that Tammie Ellis' answers to the

questions of whether she stole money or

merchandise from Fashion Bar indicated

deception (Tr.Vol.II,pp.318-324).

3. David Buckley. Even David Buckley,

defendant in this action, equated the

checkmark scoring system that he commonly

uses, to Backster's numerical system commonly

used by the majority of polygraphers and all

of the other experts. Buckley testified that

both systems are methods of quantitatively

analyzing a polygraph chart. Buckley's use of

light, medium and heavy checkmarks correlate

to the numerical assignments of one, two and

three. (Tr.Vol.III,p.506, 512).

Although Buckley denied any improper

scoring of Tammie Ellis' polygraph

examination, he made several key admissions:

(1) he failed to afford an opportunity to

Tammie Ellis for a re-test, as required by

standard 6 of the American Polygraph

Association Standards and Principles of

Practice (Tr.Vol.IVA,pp.8-13); (2) although he

denied misreporting the results of his

examination of Tammie Ellis, he did state that

the American Polygraph Association Code of

Ethics provides that it is gross negligence

for a member to misreport the results of an

exam (Tr.Vol.IVA,p.49).

4. Defendants' Wi ses. Frank

Horvath and Lynn Marcy, both polygraphers,

were called as defense experts. While both

experts generally defended Buckley's scoring

of Tammie Ellis' polygraph examination, both

scored the examination as "inconclusive," and

not as deceptive as Buckley had scored it.

(Tr.Vol.IV,pp. 630, 646).

ARGUMENT

REASONS FOR DENYING THE PETITION

I. PETITIONERS HAVE MISSTATED THE EVIDENCE

Petitioners have significantly misstated

the evidence at each stage of appeal in this

case. In Tacon v. Arizona, 410 U.S. 351

(1973), this Court noted that a Writ of

Certiorari will be dismissed as improvident

where the only relevant issues raised in state

courts were primarily factual issues as they

are here.

For example, the Petitioners point out

under the heading entitled: "Evidence Pointing

re) 7 + ; Ws

Prior to administering a polygraph

examination and interviewing Ellis,

Buckley had been told by another

Fashion Bar employee that she had seen

Ellis take some money from the cash

in an envelope containing her personal

cancelled checks. The other employee

also stated that she saw Ellis place

the envelope under her desk, and that

she thought Ellis was probably

stealing the money...

This is all true except it was not

presented at trial. This is most likely

because Plaintiff had a 3' x 5' blow-up

exhibit of a cancelled check written by Ellis

to Fashion Bar which her supervisor had

approved for her to cash. The other employee

that witnessed this incident was not

unavailable at trial as Petitioners indicated.

Defendants simply elected not to call her

after reviewing Plaintiff's exhibits. This

witness had not moved or even changed

employers prior to trial, and Plaintiff was

ready to call her as a rebuttal witness if

necessary.

The facts are that Buckley was convinced of

Tammie's guilt prior to the examination and

never gave her a chance to explain the fact

that she had been seen simply cashing an

employer-approved check. Buckley never asked

Tammie during the 2 - 3 hour interrogation

about the statement! He then used his

superior position and the spectra of the

een eerie

polygraph machine to berate and harass a

pregnant, naive and deeply religious girl for

2 -3 hours, not letting her leave until over

an hour after his office had closed, and all

the while keeping her husband locked out of

the interrogation room!

Buckley misread his own graphs according to

each and every expert at trial, including his

own, and then recklessly cost Plaintiff her

job and more importantly her confidence and

self-respect. The fact that another Fashion

Bar employee, Debra Troppman, testified that

Buckley had treated her in a similar manner

showed a pattern of intentional misbehavior

that deserves to be punished.

II. THIS COURT LACKS JURISDICTION

Defendant~-Petitioners incorrectly claim

that they have properly asserted jurisdiction

under 28 U.S.C. §1251(a). 28 U.S.C. §1251(a)

gives the U.S. Supreme Court original and

exclusive jurisdiction of all controversies

"between two or more states." Because this

case does not involve a controversy between

two or more states the Defendant-Petitioners

do not have jurisdiction under 28 U.S.C.

§1251(a).

Defendant-Petitioners have for the first

time raised federal constitutional issues,

basing their Petition on Pacific Mutual v.

Haslip, 89-1279, cert. granted, 110 S.Ct.

1780, 108 L.Ed.2d 782, 89-1279, 58 Law Week

3625, ruling below 553 S.2d 537 (Ala. 1989).

At no time were any of the Federal

constitutional issues of Pacific Mutual,

supra, which are now being presented by the

Petitioner, raised, argued, considered or

ruled upon in a Colorado trial or appellate

court. Therefore, this Court also lacks

jurisdiction under 28 U.S.C. §1257 to consider

the Federal constitutional issues so belatedly

presented by Petitioners.

28 U.S.C. §1257(3) provides that this Court

may grant certiorari where "the validity of a

State statute is drawn in question on the

ground of its being repugnant to the

constitution..." enebenee this ground was

never argued, considered or ruled upon in the

trial court, the Colorado Court of Appeals or

the Colorado Supreme Court.”

Jurisdiction of the United States Supreme

Court to review a judgment of the highest

court of a state turns upon whether a Federal

right was specifically set up or claimed in

that court and denied by its decision. To be

effective for this purpose, an assertion of a

Federal right must at least have "fair color

of support" and not be frivolous or wholly

° No constitutional "due process"

issues were raised by Petitioners in the

Colorado Court of Appeals or in the

Colorado Supreme Court. After the Colorado

Supreme Court had denied the Petition for

Certiorari, Petitioners filed a subsequent

Motion to Reconsider Denial of Petition for

Certiorari, which did, for the first time,

raise constitutional issues. This Motion

to Reconsider, however, was stricken by the

Colorado Supreme Court as untimely and not

authorized by Colorado Appellate Rules

(C.A.R. 54).

without foundation; a Federal question which

rests upon an obviously false assumption is so

plainly devoid of merit as to afford no basis

for exercise by the Federal Supreme Court of

its appellate jurisdiction over the state

court. Parker v. McLain, 237 U.S. 469 (1915).

The general rule is that questions, of

whatever nature, not raised and properly

preserved for review in the trial court, will

_— noticed on appeal to the United States

Supreme Court. Safeway Stores ne. VW.

Oklahoma Retail Grocers Ass'n, Inc., 360 U.S.

334, (1959); Dick v. New York Life Ins. Co.,

359 U.S. 437, (1959).

The United States Supreme Court does not

have jurisdiction to consider or entertain

particular questions or matters not raised at

a state court level, as with respect to

relief, causes of action or grounds for

recovery, grounds of defense or opposition, or

constitutional questions. Hull v. Burr, 234

U.S. 712, (1914); Weade v. Dichmann, Wright

and Pugh, 337 U.S. 801, (1949); United Rys &

Electric Co. of Baltimore v. West, 280 U.S.

234, (1930); Shelley v. Kraemer, 334 U.S. 1,

(1948).

The United States Supreme Court will not

ordinarily decide questions of local law

independently, but will look to the trial

court for aid in dealing with issues of state

law that enter into judgments. Ske Oil Co.

v. Phillips Petroleum Co., 339 U.S. 667

(1950); U.S. v. Durham Lumber Co., 363 U.S.

522 (1960). The United States Supreme Court

usually accepts and will not disturb the

determination of the state appellate court on

such questions in the absence of plain error.

Allegheny County v. Frank Mashuda Co., 360

U.S. 185 (1959); Spiegel's Estate v. C.I.R.,

335 U.S. 701 (1949); U.S. v. Kimball Foods,

Inc., 440 U.S. 715 (1979); New Haven Inclpsion

Cases, 399 U.S. 392 (1970). Fact findings of

the trial court are given great weight and

will be accepted by the Supreme Court unless

presad ©

clearly erroneous. omstock v. oup o

Institutional Investors, 335 U.S. 211 (1948);

Ma j hi ia Vv

Equality League, 415 U.S. 605 (1974).

A party cannot assume an attitude

inconsistent with or different from that taken

by him at the trial level when a cause is

brought up for review to the Supreme Court.

Texas ‘ Vv i °

204 U.S. 426, (1907). Petitioner is

restricted to the theory on which the cause

was defended in the state court. Weade v.

Dichmann, Wright and Pugh, supra. The

Petitioners cannot change their theory or

position as to the nature of the cause of

action or their defense. San Juan Light &

Transit Co. v. Requena, 224 U.S. 89, (1912);

Thomas v. Taylor, 224 U.S. 73, (1912).

Explicit and timely insistence in state

court that a state statute is repugnant to the

Federal Constitution, treatises or laws, is a

requisite to jurisdiction of the United States

Supreme Court (under 28 U.S.C. §1257) to

review, on appeal, judgment of a State Court

upholding the statute. ohr Aircraft Corp. v.

Coun ° a j , 362 U.S. 628 (1960).

Jurisdiction of the Supreme Court does not

depend on whether the state court addressed a

federal question; it is enough that the

federal claim was made and not accepted; but

the Supreme Co would no ve jurisdiction

under §1257 if the federal question was

neither raised nor decided in the state

proceedings. lLynk v. LaPorte Superior Court

No.2, 789 F.2d 554 (CA 7 Ind 1986). [Emphasis

added].

Rule 10 of the United States Supreme Court

Rules provides that review on writ of

certiorari is not a matter of right, but of

judicial discretion and will be granted "only

when there are special and important reasons

therefore." The following, while neither

controlling nor fully measuring the Court's

discretion, indicates the character of reasons

that will be considered:

(a) When a United States court of appeals

has rendered a decision in conflict with the

decision of another United States court of

appeals on the same matter, or has decided a

federal question in a way in conflict with a

state court of last resort; or has so far

departed from the accepted and usual course of

judicial proceedings...

(b) When a state court of last resort has

decided a federal question...

important question of federal law which has

not been, but should be decided by this

Court...®

Viewing the facts, evidence and law of this

case as set forth in the decisions of the

trial court, Colorado Court of Appeals and

denial of certiorari by the Colorado Supreme

Court (as attached to Petitioners brief as

Appendices) it is apparent that no federal

question was ever raised, argued, considered

or ruled upon.

In this case the validity of Colorado's

Punitive Damage Statute, C.R.S. §13-21-102,

was never challenged and therefore this Court

lacks jurisdiction or should at least deny

discretionary review under 28 U.S.C. §1257.

In this case, Petitioners have simply

copied the issues in Pacific Mutual v. Haslip,

supra, even though the entire factual and

statutory background is completely different,

both in posture and in the underlying

substantive state law being appealed. This is

not enough. The federal question necessary to

appellate jurisdiction in the United States

Supreme Court must be one not in mere forn,

but in substance. j Ww Vv.

Northern Ohio Traction & Light Co., 252 U.S.

388 (1920).

III. DEFENDANT-PETITIONERS HAVE MISSTATED

THE FACTS, EVIDENCE AND LAW OF THIS CASE TO

CONFORM THEM TO ANOTHER CASE PRESENTLY BEFORE

THIS COURT UNDER VERY DIFFERENT FACTS.

Pacific Mutual Life Insurance Company v.

Haslip, supra, deals with a situation where

Alabama provided no statutory guidelines or

standards for a jury to use in awarding

punitive damages. They were entirely

discretionary in Alabama at the time of the

acts that gave rise to Pacific Mutual. There

has always been a controlling statute in

Colorado setting forth adequate guidelines for

the assessment of punitive damages as well as

considerable case law further defending the

jury's role in assessing punitive damages.

The United States Supreme Court in Pacific

Mutual, supra is also considering the issue of

whether or not an award of punitive damages—

when applied against a corporate defendant for

the unauthorized acts of its agent violates

the corporation's right to due process. This

is not the issue presented here. In this

case, Defendants stipulated to their

employee's agency and stipulated to the

application of respondeat superior. Also, the

underlying facts in Pacific Mutual, supra are

much different. There, the corporate

defendant presented its case by claiming that

the agent was outside the scope of his agency

at the time he committed the acts which gave

rise to the punitive damage award. Defendants

cannot now claim that even though they

stipulated to David Buckley's agency and the

application of respondeat superior, that they

should be protected against an award of

punitive damages for his individual acts.

IV. EVEN ASSUMING ARGUENDO THAT A PROPER

ISSUE UNDER FEDERAL LAW EXISTS, THE STANDARDS

FOR THE IMPOSITION OF EXEMPLARY DAMAGES UNDER

COLORADO STATUTES, JURY INSTRUCTIONS AND CASE

LAW ARE CONSISTENT WITH THE DUE PROCESS CLAUSE

AND THE HOLDINGS OF THIS COURT. THE CASES

CITED BY PETITIONER ARE WHOLLY DISTINGUISHABLE

AND NOT CONTROLLING. THE EXEMPLARY DAMAGES

AWARDED BY THE JURY IN THE PRESENT CASE ARE

NOT GROSSLY EXCESSIVE, ARE CLEARLY REASONABLE,

AND ARE IN AN APPROPRIATE RATIO TO THE

COMPENSATORY DAMAGES ALSO AWARDED BY THE JURY.

At the time this case arose, a Colorado

statute, C.R.S.- §13-21-102 (1973), provided:

Exemplary Damages. In all civil

actions in which damages are assessed

by a jury for a wrong done to a

person, or to personnel or real

property, and the injury is attended

by circumstances of fraud, malice, or

insult, or a wanton and reckless

disregard of the injured party's

rights and feelings, the jury, in

addition to the actual damages

sustained by such party, may award him

reasonable exemplary damages under

this statute.

In light of this statute, Colorado courts

instructed juries, as in the present case,

consistent with Colorado Jury Instructions -

Civ. 2d 5:3 (1980) that:

If you find in favor of the

plaintiff, and award actual damages,

then you should consider whether the

plaintiff is entitled to exemplary

damages. If you also find beyond 2

reasonable doubt that the injury

complained of was attended by

circumstances of insult or a wanton or

reckless disregard of the rights and

feelings of the plaintiff, then in

addition to any actual damages, you

may also award the plaintiff a

reasonable sum as exemplary damages.

Exemplary damages are not to be

construed as compensation to the

plaintiff for wrong done, but as

punishment to the defendant, and as an

example to others. [Emphasis added. ]

A jury finding of punitive damages in

Colorado is supported if the evidence is

sufficient to support a determination "beyond

a reasonable doubt" that defendant acted with

a wanton and reckless disregard of the rights

of plaintiff. Big O Tire Dealers, Inc. v.

Good ear Tire & Rubber Co., 408 F.Supp. 1219

(D.Colo. 1976), modified on other grounds and

aff'd, 561 F.2d 1365 (10th Cir. 1977), cert.

dismissed, 434 U.S. 1052 (1978).

Although exemplary damages are not

automatic, they are designed to inhibit or

deter the type of conduct for which they are

awarded, and are assessed in addition to

actual damages even though they can both arise

from the same conduct. Beebe v. Pierce, 185

Colo. 34, 521 P.2d 1263 (1974); Enright v.

Graves, 560 P.2d 851 (Colo. 1977). They are

not double punishment. E.F. Hutton & Co. v.

Anderson, 42 Colo. App. 497, 596 P.2d 413

(1979).

The purpose of exemplary damages is not to

compensate the plaintiff, as is the purpose of

damages for outrageous conduct, but rather to

punish the defendant. Leidhold v. District

Court, 619 P.2d 768 (Colo. 1980); Mince v.

Butters, 200 Colo. 501, 616 P.2d 127 (1980).

The amount of a punitive damage award is

within the discretion of the jury and need not

be strictly proportionate to the amount of

compensatory damages so long as the record

shows that the jury was properly guided by the

criteria for assessing punitive damages.

Walfo

’

793 P.2d 620 (Colo. App. 1990); Palmer v. A.

H. Robbins Co., Inc., 684 P.2d 187 (Colo.

1984); and Coale v. Dow Chemical Co., 701 P.2d

885 (Colo. App. 1985), but see §13-21-

102(1) (a) C.R.S. (1987 Repl.Vol.6A) (limiting

exemplary damages in causes of action arising

after July 1, 1986).

The guiding criteria for assessing an award

for punitive damages are: "(1) The nature of

the act which caused the injury; (2) the

economic status of the defendant; and (3) the

deterrent effect of the award on others."

Ww j i & Co. pc...

supra; Palmer v. A. H. Robbins Co., supra.

The fact that in the present case the

jury's ratio between compensatory damages

($122,000.00) and punitive damages

($125,000.00) was very nearly a one-to-one

ratio, and that after remittitur they remain

at approximately one-to-two

($59, 400:$125,000), indicates that the

relationship between compensatory and punitive

damages is reasonable. See, Frick v. Abell,

602 P.2d 852 (1979) (1:3 ratio upheld); Palmer

v. A. H. Robbins Co., Inc., supra (10:1 ratio

upheld); and Mailloux v. Bradley, 643 P.2d 797

(Colo. App. 1982) (10:1 ratio and 35:1 ratio

upheld).

Obviously, Colorado law provided much more

than no standards for awarding eundtive

damages, as Defendant-Petitioners allege and

as this Court is considering in Pacific Mutual

v. Haslip, supra.

Colorado courts and Federal courts have

also held that C.R.S. §13-21-102 (1973) did

not constitute double punishment, did not

violate equal protection, was not void for

vagueness, was not or cruel and unusual

punishment, and was intended to authorize an

award of exemplary damages for the purpose of

punishing persons who have inflicted injuries

with malice. E.F. Hutton & Co. v. Anderson,

supra; Palmer v. A.H. Robbins Co., Inc.,

Supra; Wegner v. Rodeo Cowboy's Ass'n, 290

F.Supp. 369 (D.Colo. 1968) aff'd and rehearing

denied, 417 F.2d 881 (10th Cir. 1969), cert.

denied, 398 U.S. 903 (1970).

As above stated, the purpose of exemplary

or punitive damages is to protect the health,

property, economic and civil rights of

citizens not only by compensating those whose

rights are invaded, but also by punishing and

deterring similar future gross misconduct.

This is the very basis of the "fault"

principle in tort law. Punitive damages

merely increase the severity of the warning

function of compensatory damages.

Furthermore, compensatory damages alone are

not adequate to achieve this goal,

particularly where the misconduct is

intentional or willful as it was in this case.

Actual damages have no relation to the

reprehensibility of misconduct. Nor do

compensatory damages effectively deter

violations of constitutional rights which

though valuable, do not entail great monetary

consequences. Carlson v. Green, 446 U.S. 14,

22 n.9 (1980) (in such cases, “punitive

damages may be the only significant remedy.")

Respondent recognizes that some members of

this Court have expressed concern about the

clarity of the legal standards used to limit

the size of punitive damage awards in civil

cases. Browning-Ferris Industries v. Kelco

Disposal, Inc., 492 U.S. 7208 £.Ce. 2908,

2923-24, 106 L.Ed. 2d 219 (1989). Undoubtedly

the laws of some states have specific flaws

that are of sufficient importance nationally

to justify the exercise of jurisdiction by

this Court. But the law of Colorado, as

applied to this case concerning the award of

punitive damages, is reasonably calculated to

produce fair outcomes. The law of Colorado

presumes the basic right to trial by jury in

tort cases, but at the same time recognizes

that lay persons on the jury need some

guidance to decide whether to award punitive

damages in the first place and, if so, in what

amount. The jury's decision is not final. If

it reaches a verdict that is demonstrably

excessive, both the trial and appellate courts

have ample authority to set aside unlawful and

unjust punitive damage awards, or to order an

appropriate reduction.

Within this framework, the Petitioners did

not fare as well as they would have wished.

But the Petitioners’ distaste for the outcome

below does not readily transform this case

into an example of the evil of a runaway jury

eager to climb into the pocket of a wealthy,

but hapless defendant. This Petition for

Certiorari represents the last hope of the

Petitioners in their quest to avoid liability

for their involvement in Tammie Ellis'

tragedy, a journey that began some six years

ago. At this juncture, the case is truly a

dispute between the parties without any

national or constitutional import.

V. THE AWARD OF BOTH EXEMPLARY OR

PUNITIVE DAMAGES (TO PUNISH THE WRONGDOER AND

SET AN EXAMPLE) AND DAMAGES FOR OUTRAGEOUS

CONDUCT (COMPENSATORY DAMAGES FOR INJURIES

CAUSED BY INTENTIONAL OR RECKLESS INFLICTION

OF EMOTIONAL DISTRESS) IS IN NO SENSE A

“DOUBLING UP", DOES NOT VIOLATE DUE PROCESS OR

EQUAL PROTECTION, AND DOES NOT EVEN RAISE A

CONSTITUTIONAL QUESTION.

Under Colorado law, outrageous conduct and

punitive damages have long been held to be

distinct and separate awards. See: Specht v.

Jensen, 832 F.2d 1516 (10th Cir. 1987);

Montgomery Wards Co., Inc. v. Andrews, 736

P.2d 40 (Colo. App. 1987); Meiter v.

Cavanaugh, 580 P.2d 399 (Colo. 1978); DeCicco

v. Trinidad Association, 573 P.2da

559 (Colo. App. 14/7); Wegner v. Rodeo Cowboy

Ass'n,, supra; Enright v. Graves, supra. As

stated in Restatement (Second) of Torts, §46

(1965), adopted by the Colorado Supreme Court

in Rugg v. McCarty, 173 Colo. 170, 476 P.2d

753 (1970), compensatory damages may be

assessed on one who, by extreme and outrageous

conduct, intentionally or recklessly causes

severe emotional distress to another

subjecting him to liability for such emotional

distress.

Petitioners cite Knierim v. Izzo, 22 I1l.2d

73, 174 N.E. 2d 157 (1961), as support for

their argument that damages for outrageous

conduct and punitive damages are duplicative

and somehow constitute a constitutional

violation.

Knierim, supra, involved claims for murder,

wrongful death, and outrageous conduct and "no

limit was placed on the amount of compensatory

damages, so it was reasonable to assume the

same amount would properly punish the

wrongdoers." footnote 7. UNR Industries,

Inc. v. Continental Ins. Co., 607 F.Supp. 855

(D.C.Ill. 1984). Knierim, supra, is a limited

aberration of the law even in Illinois, where

courts do allow both outrageous conduct and

punitive damage awards. See, Gilardi v.

Schroeder, 672 F.Supp. 1043 (N.D. Ill. 1986).

Cther jurisdictions have flatly refused to

adopt Knierim, supra and its limited progeny,

dismissing them summarily as without merit.

Fletcher v. Western National Life Insurance

Co., 89 Cal. Rptr. 78 at 95 (C.A. 4th Dist.

1970); See also, State Rubbish Etc. Ass'n v.

Silizmoff, 38 Cal. 2d 330, 240 P.2d 282

(1952). Knierim, supra is cited most often as

simply the first case in Illinois to recognize

outrageous conduct.

The 10th Circuit addressed the issue of

duplication in Malandris v. Me

Pierce, Fenner & Smith, 703 F.2d 1152 (1981)

at 1171, footnote 7, saying, "[{I]t is clear

under Colorado law both compensatory and

punitive damages may be awarded...", citing

Enright v. Graves, supra. Implicitly the 10th

Circuit also held that: such an award of both

punitive damages and damages for outrageous

conduct did not violate due process.

VI. ALL VIABLE ISSUES ARE MOOT AS A MATTER

OF LAW

There are no viable issues to be considered

on appeal since Colorado has amended Colorado

statute C.R.S. §13-21-102 in 1986 to provide

an even more detailed statute regarding

punitive damages, and the Federal government

has preempted the area of civil law addressed

in this action by passing the Employee

Polygraph Protection Act of 1988, 29 U.S.C.

§2001, et. seq.

Rule 10 of the Supreme Court Rules requires

special and important reasons to review

decisions of lower courts. No such reasons

are presented here. To the contrary,

Defendant-Petitioners' claims raise only

misplaced and moot questions. An appeal from

a judgment of the highest court of a state

will be dismissed by the United States Supreme

Court where resolution of the constitutional

issues presented by an appellant is not

appropriate in the circumstances of the case.

De Backer v. Brainard, 396 U.S. 28 (1969). A

federal question sufficient for consideration

by the Supreme Court must not be merely

abstract or moot. Little v. Bowers, 134 U.S.

547 (1890); Kimball v. Kimball, 174 U.S. 158

(1899). The concern of the Supreme Court is

to see that substantial justice is done, not

to search the record for possible errors.

Williams v. U.S., 341 U.S. 97, (1951). Any

matter involved in the case on review in the

Supreme Court which has become an abstract or

moot question will not be reviewed. First

National Bank of Arizona v. Cities Service

Co., 391 U.S. 253 (1968), rehearing denied,

393 U.S. 901 (1968).

CONCLUSION

In every person's life, whether such a

person lives to be twenty or one hundred years

old, there are certain days that remain etched

in memory forever--the day a loved one dies,

the day of the birth of a first child, and so

forth. Such a day is that on which Tammie

Ellis was mercilessly interrogated by

Defendant Buckley and subsequently incorrectly

reported as being deceptive on a polygraph

test and implicitly guilty of theft. She lost

not only her job but more importantly, she

lost what little confidence she iad at her

young age and just about all of her self-

esteem. In this regard, the trial court judge

had no problem finding that the conduct on the

part of Petitioners should be submitted to the

jury's determination of whether it constituted

“outrageous conduct", entitling her to

compensatory damages, or circumstances of

"fraud, malice, or insult, or a wanton and

reckless disregard of the injured party's

rights and feelings", entitling her to

punitive or exemplary damages:

"Now, this is evidence taken in

the light most favorable to the

Plaintiff. By that standard, I

have no trouble with my duty as

a judge of this Court to say

that that would fit within the

extreme and outrageous conduct.

Again, I am not adopting any

conclusion of fact, but given

the evidence of record, the

weight that is most favorable

to the Plaintiff, that's what's

there." Tr.Vol.III, p. 440.

Colorado was not a state with no standards

governing the imposition by a jury of punitive

or exemplary damages at the time this case

arose and was tried. As discussed below,

guidelines were provided not only by statute,

but also by detailed jury instructions; by the

trial court in deciding whether the issues of

outrageous conduct and punitive damages should

be submitted to the jury in the first place,

and subsequent to the trial in ordering a

remittitur; and by the Colorado appellate

courts in applying standards developed in the

Colorado case law. The entire process shows a

sensitivity by the State of Colorado to the

need for guidelines in cases involving facts

which give rise to claims for punitive or

exemplary damages or outrageous conduct. The

resulting verdict, as affirmed by the Colorado

Court of Appeals and the Colorado Supreme

Court, is reasonable, not excessive, and in no

way violates due process.

Finally, and perhaps most importantly, it

is respectfully submitted that this Court

totally lacks jurisdiction under 28 U.S.C.

§1257, and for this reason alone the Petition

for Certiorari should be denied. Petitioners

never raised any constitutional or due process

issues in the Colorado trial court, the

Colorado Court of Appeals, or in their

Petition for Certiorari to the Colorado

Supreme Court. It is totally improper and

disingenuous for these issues to be raised for

the first time in the United States Supreme

Court. Nor is this a case where the issues

have been framed in such a manner that their

determination could provide some beneficial

guidelines to other states struggling to "fine

tune" their handling of claims for punitive

damages.

This case began in early 1984. Tammie

Ellis has been enduring this "living

nightmare" for over six years. It is time for

this tragedy to now come to an end, and this

Court should deny the Petition for Certiorari

for all the reasons above stated.

Respectfully submitted,

JOHN G. SALMON

Counsel of Record

MARK L. ANDERS

FRANCINE R. SALAZAR

SALMON, GODSMAN &

NICHOLSON, P.C.

Salmon Law Building

7450 East Progress Place

Englewood, Colorado 80111

(303) 771-9900 .

Attorneys for Respondent

September 19, 1990

59 "

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.