# Opposition Brief — Buckley v. Ellis

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2581%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 920

## Text

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

Y

No. 90-191

In The

Supreme Court of the United States
October Term, 1990

4

DAVID M. BUCKLEY and
JOHN E. REID AND ASSOCIATES, INC.,
an Illinois corporation,

Petitioners,
v.

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

Vv

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

Vv

sce ,
Fenner & Smith, 703 F.2d 1152
(1981) ..ccccccccccccccecs eeeeeeeese#seres* -9,53

ce

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

vi

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

6

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).

7

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)

7

(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).

9

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

10

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:

11

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

13

EE

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).

14

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

15

ee

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"

16

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

17

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,

18

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

20

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

21

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

22

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

23

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

24

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

26

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

27

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'

28

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:

29

(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).

30

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
register at Fashion Bar and place it
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...

31

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

32

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

33

"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

34

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).

35

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

36

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

37

il

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

38

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

39

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...

(c) When a state court ... has decided an
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

40

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.

41

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

42

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:

43

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. ]

a4

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).

45

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

46

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

47

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.

48

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,

49

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

50

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

51

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

52

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

54

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

55

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

56

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

58

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 "

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2581%3A2. Public record. Not legal advice.