# Brief for the Respondents in Opposition — Benson v. Rich > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0444%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondents in Opposition - **Published:** January 1, 1972 - **Citation:** 405 U.S. 978 ## Text ’ . . * ” - 5 . . . Fy . ‘ - “ , . ss > : * . . « , - ‘~ . - ~ > taal = Ce oF) 8a ee ee eee - ~ =p ad — a , ed ae ae 2 IN tHe " ye SUPREME CovRT OF THE UNI ITED STATES - ‘ aa - CTOBER TE ERM. isl : ' : a 6 a . . a . - © ac oo a a ‘ MICHAEL. BENSO> JUNE TRACY, EDDIE BROWN ¢ MA LItTIRD . ana ! D \ H 5b is ARD, ts e Py HM f : VS . : ee JOSEPH RICH, JACK JOHNSON, CHRIS D1GREGORIO | EDWARD'S. (“IKE’)-MERRY, and - » --: > oe ae . ,RICHARD KAUZEARIE, .. _ Respondents. ° : _ i. ; 3 . 7 | _BRIEF OF RESPONDENT JOSEPH RICH, IN OPPOSI. coe _ TION TO PETITION FOR A WRIT. OF CERTIORARI TO = THE TENTH CIRCUIT COURT OF. APPEALS. ° te Soles . a JAMES E. SPERLIN ‘ ‘Kewnetn §£.. H. ARRIG y 7 ’ Post: Office Box 3168 if : ;- - tio Be 600 Public Service‘ Bustdin I INDEX Carroll v. President and Commissioners ef Princess Anne, 393 U.S. 175 (1968) 2: - 13. Cawley v. Warren, 7th Cir., 216 F.2d 74 (1954) Sintageateenied 9, 10 Cohen v. California, 403 U.S. 15 2) . | * 7 INDEX : Ill Yaselli v. Goff, 2d Cir., 12 F.2d 396 (1926), aff’d per : curidm 275 US. 503 See ret cnkncinsiianeetaeetiennn ieee 7,9, 10 ‘Gone . Section 17-1-11 - (a) and (c), New Mexico Statutes Annotated, Ehsaan oa aie DR Ea en 2,8 Section 40A- 14-1, New Mexico Statutes Annotated, 4 ER Cha E USESEISES GS SIR oe te YR 2,5. Section _40A-14-5,—New Mexico Statutes “Annotated, A jotnititlaehsincileenbesiasSniaisstis cioenSncauecosnces, By DO MISCELLANEOUS, 69 Supreme Court V, VI, address of former Chief-Jus- tice Vinson before American Bar Association, Sep- — tember 7, 1949 WE Se siieaesaie aie | ] es 35% ee “IN THE ~ SUPREME COURT OF THE UNITED STATES OCTOBER has ae 1971 ‘No. rE BO rh a IY i | MICHAEL BENSON, JUNE TRACY, EBDIE BROWN _ and LINDA HUBBARD, Petitioners, VS. JOSEPH RICH, JACK JOHNSON, CHRIS DiGREGORIO, ee '. EDWARD S. ‘(“TKE” ) MERRY, and RICHARD KAUZLARIC, | pa ania: K BRIEF OF RESPONDENT JOSEPH RICH IN OPPOSI- TION TO PETITION FOR A WRIT OF CERTIORARI TO . THE TENTH CIRCUIT COURT OF APPEALS The opinions below are adequately set ‘forth’ in the _ Petition. JURISDICTION The jurisdictional requisites are —— set forth : in the Petition. OPINIONSBELOW © ss ‘QUESTIONS PRESENTED _ : (1). Is an Assistant District Attorney immurie from -/ eivil liability for alleged damages resulting from his in- | terpretation of state-taw, his application of the same to the facts submitted to him, and his resulting advice to a State officer’ given at the latter’ S request? : (2) ‘Did the legal advice given a state offices by the Assistant District Attorney deprive Petitioners of rights secured — by the United States Constitution? STATUTES INVOLVED, In addition to those set forth in. the cpiarag at pages 2 and 3: Section -17-1-11, New Mexico Statutes Annotated, 1953: ‘ “Each district attorney, shall: A. Prosecute and defend ‘for the state’ in all courts of record of the counties of his district all cases; criminal and civil, in which the state or any county in. | his district may be a sighted or may be interested; “ea Mii ise all county and state officers whenever re-. quested: * 1 “#D) Section 40A-14-1, New Mexico Statutes Annotated, 1953: “Criminal trespass consists of unlawfully, and with malicious intent, entering or remaining upon the lands’ of dnother knowing that such consent to enter or re- | ~ main is denied or withdrawn by the owner or occu- y pant thereof. - ‘Whoever omnes criminal cheiasien: is coasts a of a petty misdemeanor. ’ ert A : Section 40A-14-5, New Mexico Statutes Annotated, 1953: “A, Wrongful use of public property consists of: cio - era jee ee : : (2) remaining in or occupying. any public property . after having been requested to: leave by the lawful custodian, or his representative, who ‘has determined that the public property. is being used or’ occupied s contrary. ‘to its intended or customary use or that the ° public property may be damaged or ees by ‘the — use; or ° (3) distriving a public af the. intended or | customary use of public property without a permit. sie Paes tory E. As used in this sepAjon’ ‘public property’ means — . any ‘public building, facility, structure or enclosure | used for a ‘public purpose or as a place of public gathering, owned or under the control of the state. or one of its political subdivisions or a religious, charitable, educational or recreational association. F. Any person who commits wrongful use. of public pony is guilty of. a petty misdemeanor. , G.. Any person who commits wrongful use’ of public property after having been requested to leave by the lawful custodian or his representative or any peace officer, who has jurisdiction, ‘is guilty . of-a “misde- meanor.’ _ 4 ; — : ‘STATEMENT OF oe CASE Thig lawsuit arises out of ev ents, ‘and occurrences that took | place at the 1969 Gallup Indian. Ceremonial in Gallup, New Mexico, on Friday, August 15) and Saturday, August 3 16. The trial judge made 18 findings of fact in granting : Rich’s summary, judgment. motion. (Petition’ pp. 17-20) ~ and then made’ 59 findings of fact at the conclusion of a -four.day trial on the merits against the.remaining Re- ‘ spondents. (Petition pp. 24-36). In their appeal to the _ >. Tenth Circuit Court of Appeals, Petitioners did not attack any of the ‘fact findings made by the trial court é as itt unsupported by the evidence: . ene Réspondent, Joseph ” Rich, is, and was at. ail ‘material times, the Assistant Djstrict: Attorney for Mc- . Kinley - ‘County, New. Mexico, the county in which the ~ Indian. Ceremonial was held. His only involvement with this case: occurred on Saturday (App. 11, 347), and, since Friday's events are adequately explained in the’ brief — filed herein by Responderits DiGregorio, Merry, and Kauz-’ larie, we will not repeat them here. Rich. was at. the Ceremonial “grounds ‘on Saturday as , a member of a voluntary - committee assisting with the . Ceremonial. While there, he was handed. a copy. of ‘the. ‘ leaflet in question (App. 369) and was told. that ‘there had been a disturbance atthe main entrance and exit: to the grandstand on Friday night by a person passing out the. leaflets: and blocking the area. (App. 349, 350). Rich : read the leaflet and ¢ame to the conclusion that its lan- guage presented a clear and imminent danger of creating or inciting ‘a riot situation among the’ approximately 8,000 persons .who were expected to co each’ performance at the Ceremonial that day. CARE 3 , dof, 353, 360}. ~ , | consent to remain was withdr awn: but Petition " to leave, a ‘criminal complaint could be filed. _Mr. Kauziaric, the President of the\Ceremodnial Asso- ciation. (a state agency) approached Rich, indicated that he was.concerned about another disturbance occurring ad -- asked Rich what might be done to prevent the occuryénce of such a disturbance. (App. 339, 341, 342, 343, _ 353). Rich felt that he was being approached by Kauz- Jaric in ‘his capacity as, Assistant District Attorney, that . . his advice was being solicited in that capacity, and that he gave such advice in that capacity. (App. 361, 362, 343). 2 Rich’s principal concern was ‘to prevent a riot situation. fr om developing. #App. 363). It.is interesting to note that © _DiGregorio, who was present. at the nial night dis- . that Officer Johnson, a state police officer traf and crowd control, felt that a potential ri or. trouble situation existed. (App. 329+ 330). ‘Rich asked Kauzlaric whether the Association owned the grounds and, upon being told that it, did, advised | Kauzlaric that, as President ‘of the Association, he‘ could - withdraw his consent for the. person. handing out the , leaflets. to remain on the premises. (App. 353, 339). It was the judgment of the Assistant District Attorney that the New Mexico trespass. statutes (Sec. 40A-14-1 and.: Sec: 40A-14-5, N.M.S.A., 1953) were applidable and, if rs refused (App. 363, | 358). | : . x‘ v A Kauzlaric) ‘then told Officer Johison that he;was w with- drawing the Association’ S consent or permission for Ben- son (who w rag the only persen Kauzlaric’ knew to be dis- tributing the leaflets) to remain on the grounds, and asked _.Johnson to ask Benson to leaiie e. (App. 339, 340, 323, 304° 337),. Johnson passed this information along to Besson . * » 6 who said he wanted to talk’ to Rich. (App. 323, 324 ‘ Johnson then accompanied Benson to the room where Rich * was located, introduced Rich to Benson as the Distyict Attorney or Assistant District Attorney and requested Rich to advise Benson, as to what his situation was. (App. 394, 355). : ae Although there is some dispute as to exagfiy ewhat Rich said, the evidence, eVen taken in a light nfost favor- able to Petitioners, is that Rich told Benson the Cere- monial officials did not like what he was doing with pass- ing out the ijeatlets, that the Geremoniai grounds were private property, that permission for him to remain on the premises had been withdrawn, and that he would be arrested if he did not leave the premises or stop passing . out the leaflets. (App. 309; cf. App. 358, 359, 324, 329, 341). Rich explained to Benson that the léaflets could be distributed in.the streets.~(App. 310). Benson made ‘no reply and he and Johnson left the office: (App. 358). This was the only contact the Assistant District Attorney had. with Benson and he did not even know the other Peti- tioners were involved with Benson much less did he have any contact with them. Johnson then accompanied Ben- son and his companions off the Ceremonial grounds. (App. 326-329). Atno time were any of the Petitioners arrested. Based upon the above facts, the trial court held that the Assistant District Attorney was immune from liability, mad@ findings and conclusions explanatory of his decision and entered summary judgment in Rich’s favor. This judg- ment was affirmed by ‘the United States Court of Appeals for ras Tenth Circuit. : . 7. REASONS FOR DENIAL OF THE WRIT I The Decision Below in No Way Conflicts with Other Courts of Appeals on the Issue of Immunity. Although summary judgment was granted Rich.on the theory of judicial or quasi-judicial immunity, the Tenth Circuit affirmed on the constitutional issue and did not ‘ yeach the immunity question. Indeed, nowhere does the - term “immunity” appear in the Tenth Circuit's decision. Its _ decision ‘cannot; therefore, be said to be in conflict with ~_ other Courts of Appeals on the issue of immunity. . Even if the Tenth: Circuit had reached and totally ‘adopted the trial- court's reasoning on the issue of immu- nity, there would still exist no reason for the issuance of the writ sought herein because there is no true conflict -among the circuits on the question of the prosecuting attor- _ney's immunity. Neither the dccision by the trial court nor any of the other cases cited by Petitioners hold that a District Attorney has ‘a “blanket immunity” solely by virtue of the position he holds and without ‘regard to the kind of conduct involved in the particular case. All courts agree that there dre limitations of the District Attorney's immunity. See Bradley, v. Fisher, 13 Wall. 335. 80 US. — 335, 20 L.Ed. 646 (1872); Yaselli vy. Goff, 2d Cir., 12 F.2d 396 (1926). aff'd per curiam 275°US. 503. As Judge Learned Hand noted in Gregoire v_ Biddle. 2d Cir., 177 F.2d 579 at 581 (1949): 7 “The decisions have, indeed, always binant as a limi- tation upon the immunity that the official’s act must have been within the scope of his powers. .. .” 8 Accord: Barr v. Matteo, 360 U.S. 564. 572 (1959); Bauers v. Heisel, 3rd Cir., 361 F.2d 581 (1966); Kostal v. Stoner, - 10th Cir., 292 F.2d 492°; 1961): Kenney v. Killian, D.C.W.D. Mich., 133. F.Supp. 571 (1955), aff'd Kenney v. Fox, 6th Cir., 232 F.2d 288 (1956): Jennings v. Nestor, 7th Cir., 217 F.2d 153 (1954): Norton v. McShane, dth Cir., 332 F.2d 855 (1964). ? The difference, if any, between the courts exists in phrasing the limitations. This does not creaté any true con- flict between the Circuits. Furthermore, regardless of the manner in which the limitations on the District Attorney’s immunity are phrased, there is no conflict in applying those . limitations to the facts. The acts allegedly committed by the prosecuting attornevs in Robichaud v. Ronan, 9th Cir., 351 F.2d 533 (1965) and Lewis v. Brautigam, 5th Cir., 227 F.2d 124 (1955) would have resulted in a denial of the defense of immunity whether the cases were decided by the Tenth Circuit or by any other circuit wherein: Peti- tioners contend a conflict as to the scope of immunity expts, | ee The trial court ‘held that. the Assistant District Attor- ney was entitled to immunity because, at all material times, he was acting in his judicial: or quasi-judicial capacity in the performance of his duties concerning matters within his jurisdiction. ‘(Petition App. A. page 21). At the re- quest of a state officér, Rich interpreted New Mexico law, applied the same to the facts submitted to him, and advised the officer as to What might be done to prevent a riot situa- tion from developing. * Under Section 17-1-11(c), N.M.S.A., 1953, Rich had a Mandatory duty to “advise all state of- ficers whenever requested” and it-was his fulfillment of ‘such duty which gave rise to the claim against him. . The District Attorney also had a statutory duty to prosecute all criminal cases in which the state may be a party or may be interested. Section 17-1-f1(a), N.M.S.A., 1953. Cer- 9 tainly his duties are not-limited to situations where a crim- inal offense has already been ¢ommitted, and if he has an ~ opportunity to prevent a situation of possible violence from developing, it would appear that he would be derelitt- in his duties if he failéd to do so. Rich’s decision that Ben- son’s activities had. or would violate state law is similar * to the decision’ which precedes the presentation -of a case to the grand jury or the approval of a criminal complaint being filed. Can it be seriously argued: that Rich was not acting in the performance of his official duties or that his ' legal advice had no connection with “the general matters ' ‘committed to his authority and jurisdiction? *, ne The thrust of Petitioners’ case .against Rich was that his decision and his legal adyice were erroneous. Even if it were, which we do not at all concede, this does not mean that Rick was acting outside the performance of his duties or that his immunity had been removed. Kenney v. Killian, D.C.W.D. Mich., 133 F.Supp: 571 (1955), aff'd Kenney v. Fox, 6th Cir., 232 F.2d 288 (1956). See Larson v. Domestic and Foreign Corp.. 337 U.S. 682 (1949); Lewis v. Brautigam, supra. In the present case’-there was no arrest. However, even if Petitioners had refused. to leave the Ceremonial grounds and had.*in fact, been arrested and prosecuted and either* acquitted in a trial on the merits or their case dismissed by the court. it is clear’ that the District Attorney would be immune from jiability. Yaselli v. Goff. supra, Bauers v. Heisel. supra. Cawley v. Warren. 7th - Cir., 216 F.2d 74 (1954). We submit that a District At- - torney should not be liable for advice not even resulting in an arrest. (100 II The Decision Below Did Not Decide an Important Question of Federal Law Which Has Not Been, but Should Moreover, the existence and scope of judicial and quasi judicial immunity under Section 1983 of the Civil Rights Act was decided by this Court in Pierson v. Ray, 386 U.S. 547 (1967), Although the case only dealt spe- cifically with the immunity of a police justice, this Court » held previously.in Yaselli v. Goff, supra, that a prose- * cuting attorney has the same immunity as a judge. In footnote nine, this Court in Pierson cited Bauers v. Heisel, 3rd Cir., 361 F.2d 581 (1966), as an example of the con- sistent holdings that “judicial immunity” is a defense to an a¢tion under Section .1983. The Bauers case, supra, dealt- with the immunity of a county prosecutor. See also, Cawley v. Warren, 7th Cir., 216 F.2d 74 (1954); Kenney v. Fox, 6th Cir., 232 F.2d 288 (1956); Kostal v. Stoner, 10th -Cir., 292 F.22™492 (1961). Ill The Decision Below Is Not-in Conflict with Monroe v. Pape. ; : 7 Aig! Petitioners contend: that the decision beiow is some- how in conflict, on the issue of irnmunity. with this Court’s - holding in Monroe v. Pape, 365 U.S. 167 (1961). The same argument was apparently made in Pierson v. Ray, supra, and the Courts answer is equally dispositive here: “Monroe v. Pape’ presented no question of immunity, however, and none was decided.” _upon a broad combination of facts and circumstances. -* . ll 7. 386 U.S. at 556. See e.g. Rhodes v. Houston, D.C. Neb., 202 F.Supp. 624 (1962), aff'd 8th Cir., 508, F.2d 959, cert. den. 377 US. ™-.