Opposition Brief — Bardunias v. County of Westchester

Supreme Court brief1991

Ask Donna

What actually matters in this document.

Text

@ Supreme Court, Ue

FILEQD

No. 90-936

JAN 8 1991

JOSEPH F. SPANIOL, JR,

In The CLERK

Supreme Court of the United States

October Term, 1990

,™

PETER BARDUNIAS, BONNIE BARDUNIAS, PETER

BARDUNIAS as parent and natural guardian of

PAUL BARDUNIAS and JOHN BARDUNIAS and

PETER BARDUNIAS,

Petitioners,

COUNTY OF WESTCHESTER, CARL A. VERGARI, as

District Attorney and JON N. WILLCOX,

individually and as Assistant District Attorney,

Respondents.

Petition For Writ Of Certiorari To The Supreme Court

Of The State Of New York, Appellate Division,

Second Judicial Department

BRIEF IN OPPOSITION ON BEHALF OF

RESPONDENTS COUNTY OF WESTCHESTER AND

CARL A. VERGARI, AS DISTRICT ATTORNEY

FRANK J. CAROLLO

Counsel of Record

ReNpDe, RYAN & Downes

Attorneys for Respondents

Vergari and County of Westchester

202 Mamaroneck Avenue

White Plains, New York 10601

(914) 681-0444

Wayne M. Rusin

On the brief

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Petitioners brought an action in state court for

malicious prosecution. In the state court proceedings the

petitioners did not raise a federal question, nor was one

ruled upon. In their application to this Court, petitioners

for the first time characterize their claim as a state action

for malicious prosecution under the Fourteenth Amend-

ment. Has a federal question been raised, and if it has,

have petitioners overcome the weighty presumption

against review where the federal question was not

pressed or passed upon in the state courts below?

2. At the time the Grand Jury was convened, the

prosecution was focused on particular crimes and indi-

viduals and the Grand Jury proceedings were not purely

investigative. Is the prosecutor entitled, in connection

with those proceedings, to absolute immunity from

claims by those indicted of malicious prosecution or its

federal counterpart?

3. When a prosecutor participates in an allegedly

illegal search of the suspects’ place of business, is he

entitled to absolute immunity in connection with his sub-

sequent activities in presenting a case against them before

an indicting Grand Jury?

TABLE OF AUTHORITIES

COUNTERSTATEMENT OF THE CASE

1. Factual Background

2. Proceedings Below

SUMMARY OF ARGUMENT

TABLE OF CONTENTS

“eee ev ee eee eee ee ee Ss ee ee

@eeevneuenveves

ee Fees ese Pere rvveeeeawesr ews

“) £2 Poe ee eee ee ee ee ee Oe ee

Veire=Ccaeaereveocwt’oe2e PpeRenres#s

ARGUMENTS AGAINST GRANTING THE WRIT

II.

CONCLUSION

REVIEW SHOULD BE DENIED AS NO FED-

ERAL QUESTION IS RAISED. FURTHER-

MORE, EVEN IF SUCH A QUESTION HAS

BEEN RAISED BY THE PETITION, !T WAS

NOT PRESSED OR PASSED UPON BELOW,

AND PETITIONERS HAVE FAILED TO MAKE

ANY SHOWING TO OVERCOME THE

WEIGHTY PRESUMPTION AGAINST

REVIEW UNDER SUCH CIRCUMSTANCES...

REVIEW IS NOT WARRANTED BECAUSE

THE SCOPE OF PROSECUTORIAL ABSO-

LUTE IMMUNITY FOUND BELOW WAS NOT

SHOWN TO BE IN CONFLICT WITH THE

DECISIONS OF THIS COURT, FEDERAL

COURTS OF APPEALS OR THE COURTS OF

OTHER STATES, AND DOES NOT RAISE AN

IMPORTANT FEDERAL QUESTION

“TVUMeoeweeueAeeweNM Ce eS Awe ee a ee A Se Oe ee ee

iii

TABLE OF AUTHORITIES

Page

Cases:

Bankers Life and Cas. Co. v. Grenshaw, 486 U.S. 71,

WE OID ga web oa sb bo hebin oe eek Aes oo 10

Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir. 1977), cert.

ON Ne My SPF O sei ccs adecce acne 12

Broughton v. State, 37 N.Y.2d 451, 335 N.E.2d 310,

373 N.Y.S.2d 87, cert. denied, 423 U.S. 929 (1975) ..... 9

Coleman v. Turpen, 697 F.2d 1341 (10th Cir. 1982) .... 11

Cunningham v. State of New York, 71 - ni 181,

422 N.Y5.2d 497 (N.Y. App. Div. 1979)............ 14

Grant v. Hollenbach, 870 F.2d 1135 (6th Cir. 1989).... 13

Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), cert.

ce | ee 12

Hastings v. Lusk, 22 Wend. 410 (N.Y. 1839) ........... 9

Heath v. Alabama, 474 U.S. 82 (1985)................ 7,9

pons @: Contes, 462 11S. 219 (1983) ..... 2... nen e sess 9

Imbler v. Pachtman, 424 U.S. 409 (1976).......... passim

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

eg 14

Maglione v. Briggs, 748 F.2d 116 (2d Cir. 1984)....... 13

Walley v. Briggs, 475 U.S. 335 (1986)................. 11

Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.

1980), cert. denied, 450 U.S. 913 (1981)............. 11

TABLE OF AUTHORITIES - Continued

Page

McGinley v. Hynes, 51 N.Y.2d 116, 412 N.E.2d 376,

432 N.Y.S.2d 689 (1980), cert. denied, 450 U.S. 918

SE eee eee el tin cae Cane Sears ea 12

Monroe v. Pape, 365 U.S. 167 (1961). ..........6e0s008 9

Mullinax v. McElhenney, 817 F.2d 711 (11th Cir.

als re a Oe ae Pee ek eee eee ewe awa eo es 14

Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert.

eee. Gee Oe, ee SOEs vio oo Sis beads VARS Ooo 13

Perkins v. Mitchell, 31 Barb. 461 (N.Y. Sup. Ct.

ee Oe ee ee Seg eli cee heb aan ne- 9

Powers v. Coe, 728 F.2d 97 (2d Cir. 1984) ............ 12

Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989) ........... 13

White v. Frank, 855 F.2d 956 (2d Cir. 1988) ........... 8

CONSTITUTIONS, STATUTES AND RULES:

U.S. Const.: Fourteenth Amendment.................. 8

ee oe i, a ees pen cae aed 7,9

i I ES os, SO Soe Cot eg Ne je as eae 9

rr er eo. ih ke ebb ee ceehehhee cep eee 4

ee Le a an eek hee aa a ena Skane ® 10

COUNTERSTATEMENT OF THE. CASE

1. Factual Background

On November 1, 1978 the law firm of Rosen & Bar-

dunias, in a joint venture with the Westchester Bureau of

Medical Economics, Inc., entered into a contract with the

County of Westchester to do collection work on some of

the delinquent accounts of persons who had been

patients at the Westchester County Medical Center

(WCMC). The contract provided that all collections were

to be deposited into a bank account controlled solely by

the County. The contract also mandated that the joint

venturers make monthly reports setting forth the amount

collected on a patient by patient basis.

In or about August, 1979 the County stopped for-

warding new accounts to the joint venture due to its

unsatisfactory collection results. However, Rosen & Bar-

dunias was permitted to continue to work on the

accounts already referred to it. Nevertheless, no reports

and monies associated with these accounts were received

from Rosen & Bardunias or the Westchester Bureau of

Medical Economics, Inc., from late 1979 until in or about

May and June, 1982, when suddenly the County received

lump sums of approximately $19,400 and $3,600 from the

law firm. This apparent irregularity was not noticed by

any County employee at the time.

In or about August, 1982 the District Attorney’s

office was contacted by an employee of Rosen & Bar-

dunias, who stated that Peter Bardunias, the sole propri- .

etor of the firm, had been embezzling funds collected on

behalf of WCMC. According to the informant Peter Bar-

dunias panicked that the County might learn of his illicit

activities, and the lump sum payments made in May and

June, 1982 were an attempt by him to put back the money

he had stolen.

On or about August 10, 1982, Assistant District Attor-

ney Jon N. Willcox commenced a criminal investigation of

the collection activities of Rosen & Bardunias. The inves-

tigation developed evidence tending to show that Peter

Bardunias had committed Grand Larceny and the Falsi-

fication of Business Records in the First Degree. In order

to uncover further evidence of the criminal a_tivity under

scrutiny, ADA Willcox obtained a warrant from County

Judge James R. Cowhey to search the offices of Rosen &

Bardunias at 199 Main Street, White Plains, New York.

The no-knock warrant was executed on October 8, 1982.

Extensive Grand Jury proceedings followed the Octo-

ber 8th search, which culminated in the indictment of

Peter Bardunias and his wife and employee, Bonnie, on

May 31, 1984 for Grand Larceny in the Second Degree,

Falsifying Business Records in the First Degree, and offer-

ing a False Instrument for Filing in the First Degree.

The criminal trial of Peter and Bonnie Bardunias

began on May 30, 1985. The charges against Bonnie Bar-

dunias were dismissed on May 30, 1985, upon the com-

pletion of the prosecutor’s opening statement. The

charges against Peter Bardunias were dismissed on June

26, 1985, at the close of the prosecutor’s case.

2. Proceedings Below

In or about October, 1983 petitioners Peter and Bon-

nie Bardunias and others commenced an action against

the respondents for false imprisonment, assault, conver-

sion and the violation of civil rights in connection with

the October 8, 1982 search of the law offices. That lawsuit

is referred to as Action No. 1 in the decision and order of

the Court to which the writ is sought, the Appellate

Division, Second Department, of the Supreme Court of

the State of New York. (See A-1 to A-7)!. With regard to

that action the allegedly illegal conduct of the members

of the Westchester County District Attorney’s office was

given only a qualified immunity by the court below. (A-4

to A-5). The rulings of the court below with respect to

Action No. 1 are not the subject of petitioners’ application

to this Court.

This action, referred to as Action No. 2 by the courts

below, was commenced in 1986, and arises out of the

prosecution of Peter and Bonnie Bardunias by the District

Attorney’s office. Also plaintiffs in the action are the

children of Peter and Bonnie Bardunias, who are assert-

ing derivative claims.

In their complaint, plaintiffs alleged that:

“15) The defendant Willcox and other

attorneys on the staff on the defendant Vergari

presented evidence to the grand jury which they

knew or should have known was false and

grossly misleading.

“16) The defendant Willcox and other

attorneys on the staff of the defendant Vergari

failed to present evidence to the grand jury

which they knew or should have known would

show the falsity and grossly misleading nature

of the evidence presented.

' Reference is to the appendix to the petition.

“18) The defendants Willcox and Vergari

and other attorneys on the staff of the Westches-

ter County District Attorney maliciously

obtained an indictment against Bonnie Bar-

dunias solely to use it as leverage against Peter

Bardunias. :

“23) Asa result of the investigation by the

defendant Vergari and his employees, the defen-

dants knew or should have known that there

was no criminal conduct by Peter Bardunias or

Bonnie Bardunias.

“24) Though they knew that Peter Bar-

dunias and Bonnie Bardunias committed no

criminal acts, the defendants continued to inves-

tigate and prosecute them.

“25) The defendant Willcox had personal

animosity against Peter Bardunias and Rosen

and Bardunias and the defendant Vergari was

aware of that fact and failed and refused to

remove defendant Willcox from the investiga-

tion and prosecution.”

(A-33 to A-36).

The complaint in Action No. 2 is devoid of any

mention of federal statutory or constitutional rights, and

endorsed upon tie summons was a notice that the nature

of the action was for “malicious prosecution”. (Record

below at A38). (See N.Y. Civ. Prac. R. 305(b) [McKinney

1990]). By contrast, the summons in Action No. 1 listed

the causes of action as “defamation, assault, unlawful

imprisonment, wrongful conversion and destruction of

and damage to property, abuse of process, abuse of exe-

cution of process and prima facie tort, and violation 42

USC 1983”. (Record below at A15). In addition, at

paragraph 18 of the complaint in Action No. 1 the plain-

tiffs alleged that, “The defendants and other public

servants conspired to cause the injury and damage to

plaintiffs in violation of their civil rights”. (Record below

at A18).

Following joinder of issue in Action No. 2, defen-

dants moved for partial summary judgment dismissing

the first seven causes of action, which were for malicious

prosecution, on the ground of absolute immunity. (The

eighth cause of action was for breach of contract. It has

been settled.) No federal question was raised by the

motions, and the trial court, passing solely upon the state

law claim, wrote:

“CAUSES OF ACTION RELATED

TO THE PROSECUTION

“Defendants’ motions for summary judg-

ment are based primarily upon their assertion

that the plaintiffs’ causes of action are barred by

the absolute immunity of the movants. Ques-

tions involving the extent of prosecutorial

immunity in a case such as this can be more

easily addressed by first examining its applica-

tion to plaintiff’s malicious prosecution causes

of action in Action No. 2.

* * a”

“It is well established that a District Attor-

ney and his Assistant District Attorneys are

entitled to absolute immunity for quasi-judicial

actions taken within the scope of the official

duties, such as initiating and pursuing a crimi-

nal prosecution and presenting the State’s case.

[Citations omitted.] The Supreme Court has

stated that qualifying a prosecutor’s immunity

while he or she was performing a quasi-judicial

function ‘would prevent the vigorous and fear-

less performance of the prosecutor’s duty that is

essential to the proper functioning of the crimi-

nal justice system’, Imbler v. Pachtman, 424 US at

427-28.

“Plaintiffs’ malicious prosecution causes of

action are primarily grounded upon alleged

improprieties on the part of A.D.A. Willcox in

his presentation of the State’s case to the Grand

Jury. Plaintiffs’ complaint in Action No. 2 con-

tain allegations that A.D.A. Willcox knowingly

and maliciously presented false testimony to the

Grand Jury, withheld evidence which would

have allegedly exonerated Peter and Bonnie Bar-

dunias and continued the Grand Jury investiga-

tion though he allegedly knew that Peter and

Bonnie Bardunias had committed no crime.

While these are certainly very serious allega-

tions, the Court finds that any of plaintiffs’

causes of action in Action No. 2 which are based

on these allegations, should be dismissed since

the alleged misconduct occurred while the pros-

ecutor was performing his quasi-judicial func-

tion of presenting the State’s case and, therefore,

absolute immunity attaches to the case and,

therefore, absolute immunity attaches to the

prosecutor’s actions. '. itations omitted]” (A-13

and A-15 to A-18)

Plaintiffs then appealed that determination, and at

page 8 of their brief to the Appellate Division wrote as

follows under the heading “THE CIVIL ACTION”:

“Plaintiffs instituted the instant action for

malicious prosecution after the dismissal of all

charges. The defendants moved to dismiss

claiming absolute prosecutorial immunity and

the motion was granted. It is from that judg-

ment that plaintiffs appeal.” (emphasis added).

The Appellate Division affirmed the dismissal of the

malicious prosecution causes of action, and in doing so

did not pass on any federal question. Plaintiffs then

sought leave to appeal to the Court of Appeals of the

State of New York, which was denied, as was their

request for reargument. Their applications to New York’s

highest court did not contain any charge that defendants

violated federal law.

—_—

SUMMARY OF ARGUMENT

1. No federal question is raised by the petitioners’

request for review of an order dismissing their common-

law malicious prosecution action. 28 U.S.C.A. 1257(a).

Furthermore, even if a federal question has been raised

before this Court, it was not pressed or passed upon in

the state courts, where the action was advanced solely on

the basis of New York common law. Thus, even if this

Court is not jurisdictionally barred from granting cer-

tiorari, there is, at the least, a weighty presumption

against review. Heath v. Alabama, 474 U.S. 82, 87 (1985).

Petitioners have made no showing to overcome the pre-

sumption, and the sparse record and lack of opportunity

for the state courts to pass upon the federal question

militate against granting the writ.

2. The substantive questions raised by this applica-

tion do not warrant review. Petitioners have failed to

show that the scope of absolute immunity found by the

court below conflicts with decisions of other state courts

or the federal Courts of Appeals. Furthermore, the

grounds petitioners advance for deviating from the gen-

eral rule granting prosecutors absolute immunity in con-

nection with their actions in obtaining an indictment from

a Grand Jury are either unsupported by the record or

contrary to precedent.

Petitioners have also failed to show that the outcome

below conflicts with any decision of this Court or needs

to be decided by it. While they decry that the genuinely

wronged person is left without civil redress, this Court

has already recognized that such a concern is outweighed

by the public interest in having vigorous and fearless

performance of the prosecutor’s duties. Imbler v. Pacht-

man, 424 U.S. 409 (1976).

ARGUMENTS AGAINST GRANTING THE WRIT

I. REVIEW SHOULD BE DENIED AS NO FEDERAL

QUESTION IS RAISED. FURTHERMORE, EVEN IF

SUCH A QUESTION HAS BEEN RAISED BY THE

PETITION, IT WAS NOT PRESSED OR PASSED

UPON BELOW, AND PETITIONERS HAVE FAILED

TO MAKE ANY SHOWING TO OVERCOME THE

WEIGHTY PRESUMPTION AGAINST REVIEW

UNDER SUCH CIRCUMSTANCES.

Petitioners describe their claim as a state action “for

malicious prosecution under the Fourteenth Amend-

ment” (Petitioners’ brief, p. 10). Their characterization is,

at the least, anomalous.

A cause of action for malicious prosecution evolved

from the common law, not the Constitution. It was recog-

nized long before the Fourteenth Amendment was

adopted. See White v. Frank, 855 F.2d 956, 959 n.2 (2d Cir.

1988); Hastings v. Lusk, 22 Wend. 410, 417 (N.Y. 1839);

Perkins v. Mitchell, 31 Barb. 461, 468 (N.Y. Sup. Ct. 1860).

This Court lacks jurisdiction to review a state court deci-

sion construing state common law. See 28 U.S.C.A.

1257(a).

The elements of a cause of action for malicious pros-

ecution are the commencement or continuation of a crimi-

nal proceeding by the defendant against the plaintiff, the

termination of the proceeding in favor of the accused, the

absence of probable cause for the criminal proceeding,

and actual malice. Broughton v. State, 37 N.Y.2d 451, 457,

335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 94, cert. denied, 423

U.S. 929 (1975). It may be that official conduct fitting

these elements also gives rise to liability under 42 U.S.C.

1983. White v. Frank, 855 F.2d at 961 n.5; cf. Imbler v.

Pachtman, 424 U.S. 409 (1976). The remedy afforded by

Section 1983 is supplementary to the state remedy. Monroe

v. Pape, 365 U.S. 167, 183 (1961). Nevertheless, neither in

their petition to this Court or in the state court proceed-

ings have petitioners asserted that they were making a

claim pursuant to 42 U.S.C. 1983 in Action No. 2.

Even if this Court were to construe the petition as

inartfully raising a federal question, review should be

denied because the claim was not pressed or passed upon

in the state courts. While such an omission may not be a

jurisdictional bar to review, it creates a weighty presump-

tion against it. Heath v. Alabama, 474 U.S. 82, 87 (1985);

Illinois v. Gates, 462 U.S. 213, 218-222 (1983).

Petitioners have made no attempt to rebut the pre-

sumption. No argument is made that the state courts

need not have been given an opportunity to decide the

question of federal law. Furthermore, as indicated below,

the record is not properly developed to adequately

address the issue raised. See Bankers Life and Cas. Co. v.

Grenshaw, 486 U.S. 71, 108 S.Ct. 1645, 1651 (1988). Lastly,

petitioners’ difficulty in clearly articulating the federal

question does not bode well for its subsequent presenta-

tion should a writ be granted. See S. Cr. R. 14.5.

Il. REVIEW IS NOT WARRANTED BECAUSE THE

SCOPE OF PROSECUTORIAL ABSOLUTE IMMU-

NITY FOUND BELOW WAS NOT SHOWN TO BE

IN CONFLICT WITH THE DECISIONS OF THIS

COURT, FEDERAL COURTS OF APPEALS OR THE

COURTS OF OTHER STATES, AND DOES NOT

RAISE AN IMPORTANT FEDERAL QUESTION.

In Imbler v. Pachtman, the prosecutor was alleged to

have knowingly used perjured testimony at trial and to

have suppressed exculpatory evidence of his expert. 424

U.S. 416. These activities were held to be entitled to

absolute immunity from civil liability because they “were

intimately associated with the judicial phase of the crimi-

nal process.” Id. at 430.

In granting absolute immunity to Deputy District

Attorney Pachtman, this Court was concerned “that

harassment by unfounded litigation would cause a

deflection of the prosecutor’s energies from his public

duties, and the possibility that he would shade his deci-

sions instead of exercising the independence of judgment

required by his public trust”. Id. at 423. While recognizing

that such immunity will leave a “genuinely wronged

defendant without civil redress against a prosecutor

whose malicious or dishonest action deprives him of

liberty,” this Court found that consideration outweighed

by the broader public interest in ensuring that the pros-

ecutor vigorously and fearlessly performs his duties. Id.

at 427-8.

The Imbler decision left open whether a prosecutor

would be entitled to similar immunity when his respon-

sibilities “cast him in the role of an administrator or

invesiigative officer rather than that of advocate”. Id. at

430-1. Nonetheless, it acknowledged that the role of

advocate for the state was not to be narrowly drawn, and

that it involves actions preliminary to the initiation of a

prosecution and actions apart from the courtroom:

“A prosecuting attorney is required constantly,

in the course of his duty as such, to make deci-

sions on a wide variety of sensitive issues. These

include questions of whether to present a case to

a grand jury, whether to file an information,

whether and when to prosecute, whether to dis-

miss an indictment against particular defen-

dants, which witnesses to call, and what other

evidence to present. Preparation, both for the

initiation of the criminal process and for a trial,

may require the obtaining, reviewing, and eval-

uating of evidence.”

Id. at 431 n. 33; see Malley v. Briggs, 475 U.S. 335, 341-343

(1986) (dicta that prosecutor seeking indictment is enti-

tled to absolute immunity).

In decisions subsequent to Imbler, prosecutors were

granted only a qualified immunity when participating in

clearly nonadvocatory functions such as participating in

an illegal search and/or seizure. Coleman v. Turpen, 697

F.2d 1341 (10th Cir. 1982); Marrero v. City of Hialeah, 625

F.2d 499 (5th Cir. 1980), cert. denied, 450 U.S. 913 (1981).

However, absolute immunity was broadly applied to

prosecutors’ involvement in Grand Jury proceedings,

even when those proceedings were partially investiga-

tive. Powers v. Coe, 728 F.2d 97, 104 (2d Cir. 1984); Gray v.

Bell, 712 F.2d 490, 502-4 (D.C. Cir. 1983), cert. denied, 465

U.S. 1100 (1984).

Only when the Grand Jury’s activities were purely

investigative has absolute immunity not been afforded

against charges of prosecutorial misconduct in connection

therewith. Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir. 1977),

cert. denied, 437 U.S. 904 (1978). In Briggs the prosecutor’s

misconduct occurred when the Grand Jury was engaged

in a broad fact-finding mission that had not yet focused

on any particular suspect. Id. at 23-24; Gray v. Bell, 712

F.2d at 502-504. Similarly, in a somewhat different con-

text, New York’s highest court has held that Grand Jury

proceedings are administrative rather than quasi-judicial

when the investigation has not yet progressed to the

stage where individual wrongdoers have been identified

or discrete charges of criminality raised. McGinley v.

Hynes, 51 N.Y.2d 116, 125-6, 412 N.E.2d 376, 380, 432

N.Y.S.2d 689, 693-694 (1980), cert. denied, 450 U.S. 918

(1981).

If it is petitioners’ contention that the court below

erred in failing to conclude that this case falls within the

Briggs exception to prosecutorial absolute immunity, the

record clearly belies their position. Even petitioners’ com-

plaint acknowledges that petitioner Peter Bardunias was

a subject of the respondents’ investigation before Grand

Jury proceedings began (A-32 to A-33). In addition, the

search warrant application by respondent Willcox, which

was made before the Grand Jury convened, clearly indi-

cated that the investigation had already focused on Peter

Bardunias as a suspect in the commission of Grand Lar-

ceny and Falsification of Business Records in the First

Degree, charges for which he and his wife were later

indicted. (Record below at A86 to A99).

Petitioners have not made a broad attack on the

absolute immunity generally accorded to prosecutors in

the Grand Jury setting. To the extent that they may be

seeking to expand or create exceptions to prosecutorial

absolute immunity in connection with Grand Jury pro-

ceedings, they have failed to cite any authority in support

of their position. Moreover, the record in this case is

particularly poor for setting forth on such a venture. It

contains only three pages of the transcript of the Grand

Jury proceedings, and the allegations of wrongdoing in

the complaint are no different than those made in

numerous other Section 1983 and malicious prosecution

actions dismissed on absolute immunity grounds. Rose v.

Bartle, 871 F.2d 331, 343-5 (3d Cir. 1989) (soliciting per-

jured testimony before Grand Jury); Grant v. Hollenbach,

870 F.2d 1135 (6th Cir. 1989) (conspiracy to bring false

charges); Maglione v. Briggs, 748 F.2d 116 (2d Cir. 1984)

(bad faith prosecution); see Myers v. Morris, 810 F.2d 1437,

1446 (8th Cir.), cert. denied, 484 U.S. 828 (1987) (withhold-

ing exculpatory evidence).

Petitioners also seemingly contend that because

members of the District Attorney’s office wore the mantle

of the investigator at one stage of the underlying matter,

i.e., the search, they may not claim absolute immunity

when they subsequently became advocates. Petitioners

have cited no authority for such a position, which the

Eleventh Circuit Court of Appeals characterized as

“unsupported by both reason and precedent.” Mullinax v.

McElhenney, 817 F.2d 711, 715 (1987); see also, Joseph v.

Patterson, 795 F.2d 549 (6th Cir. 1986), cert. denied, 481 U.S.

1023 (1987) (absolute immunity granted to prosecutor vis-

a-vis malicious prosecution claim but not for claim aris-

ing out of participation in search); Cunningham v. State of

New York, 71 A.D.2d 181, 422 N.Y.S.2d 497 (N.Y. App. Div.

1979) (With respect to Grand Jury proceedings, prosecu-

tor entitled to absolute immunity for failing to properly

instruct it on law, introducing inadmissible evidence, lack

of impartiality, lack of probable cause, overzealous cross-

examination of witnesses, selective and highly distorted

presentation of evidence, and introducing altered

recorded conversations. However, only qualified immu-

nity attached to prosecutor’s use of an overtly false affi-

davit to obtain a wiretap warrant).

Lastly, petitioners contend that by granting prosecu-

tors absolute immunity, they could maliciously harm

their enemies without any deterrent. (Petitioners’ brief, p.

10). This Court already thoroughly analyzed and resolved

that issue in Imbler, and petitioners have raised no new

considerations in their application.

CONCLUSION

This Court lacks jurisdiction to grant the writ sought

by the petitioners. In the alternative, if jurisdiction exists,

the petition for a Writ of Certiorari should be denied as

the federal question was not pressed or passed upon

below, and because petitioners have failed to show that

the decision of the Court below deviated from any prece-

dent in this often litigated area.

Respectfully submitted,