Opposition Brief — Taylor v. Meacham

Supreme Court, U.S. a | |

~ FILED

Ci AUG 20 1996

No. 96-211 eames

In The

Supreme Court of the United States

October Term, 1995

S

DALE TAYLOR,

Petitioner,

vs.

LLOYD MEACHAM and UINTAH COUNTY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

BRIEF IN OPPOSITION

S

Rosert R. WALLACE,

Counsel of Record

Attorney for Respondents

4 Triad Center, Suite 500

Salt Lake City, Utah 84180

(801) 363-7611

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

OR CALL COLLECT (402) 342-2831

i

ISSUES PRESENTED FOR REVIEW

Whether this Court should reassess the complex,

voluminous facts and determine the propriety of the fac-

tual analysis made by the Tenth Circuit Court of Appeals,

through which analysis Petitioner was denied relief?

Whether this Court should give an advisory opinion

on the existence of a federal claim for malicious prosecu-

tion, where 1) a decision that such a cause of action exists

would merely affirm the Tenth Circuit Court of Appeals’

recognition of such a cause, yet leave Petitioner without

relief because, as a matter of fact, he was not entitled to

relief under such a cause of action, and 2) a decision that

no such cause of action exists would eliminate the legal

basis of Petitioner’s claims, also leaving him without

relief?

If there is a federal cause of action for malicious

prosecution, whether this Court should issue an advisory

opinion clarifying the elements thereof, where all circuit

courts agree that one element is lack of probable cause,

and where Petitioner’s claims were dismissed because

factually there was ample probable cause for the actions

taken against him?

il

LIST OF ALL PARTIES

The caption in this Court contains the names of all of

the parties.

iil

TABLE OF CONTENTS

Page

ISSUES PRESENTED FOR REVIEW ................ i

I ss 5 oo oss vaca cencscsasncece ii

Os ok San os ud ovens duvenbdavesds iii

pe ee or. iv

CITATIONS OF THE OFFICIAL REPORT........... 1

STATEMENT OF BASIS OF JURISDICTION ........ 1

STATEMENT OF THE CASE (FACTS).............. 1

MISSTATEMENTS OF FACT ............00.cceeeees 17

CONSTITUTIONAL PROVISIONS, TREATIES, STAT-

UTES, ORDINANCES AND REGULATIONS ..... 18

SUMMARY OF ARGUMENT...................000. 18

CTE CUR eis Waka Apa eke vd sh ne iscen bcc’ 19

POINT I PETITIONER ASKS THIS COURT

TO REASSESS IMMENSE FACTUAL

DATA, NOT A USUAL FUNCTION

Se EN EE 0S An asa Ad eb stnsascese 19

POINT II A DECISION ON THE ASSERTED

LEGAL ISSUE WOULD NOT PRO-

VIDE PETITIONER ANY RELIEF

AND WOULD BE AN ADVISORY

ORT ESOL ET TERT ERT STL CT EEE 21

Ec Ub AE UA5 0's bia us ov ka scuba vauheds 24

iv

TABLE OF AUTHORITIES

CASES

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949)..... 19

National Bank of Oregon v. Insurance Agents, 508

8 eR i ey ee error 21

NLRB v. Hendricks County Rural Electric Corp., 454

OS 26 OOo). kv koe 19

Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330

SR ea ia oe eae ue ere 21

Taylor v. Meacham/Uintah County, 82 F.3d 1556

Peeee Ao Se Ss sob vo'b.ce awk EERG cewek ene eee eeu 1

Texas v. Mead, 465 U.S. 1041 (1984).................. 19

United States v. Johnston, 268 U.S. 220 (1925)......... 19

STATUTES

Pk Toe | Are eS Per errs ee ere es oe 1

ie ess Te Ca Sade ean 65k ees eens Ok as 18, 21

RULES

Rule 10, Rules of the Supreme Court of the United

NE 6a se Bk ees 4 len Vike AG Oa OS Cw a i 1, 19

CONSTITUTIONAL PROVISIONS

Fourth Amendment, United States Constitution...... 18

Fourteenth Amendment, United States Constitu-

SE ee

CITATIONS OF THE OFFICIAL REPORT

Taylor v. Meacham/Uintah County, 82 F.3d 1556 (10th

Cir. 1996)

STATEMENT OF BASIS OF JURISDICTION

The Petitioner has 90 days from the date of judgment

to petition this Court for certiorari. Judgment was

entered May 7, 1996. Jurisdiction is not contested under

28 U.S.C. § 1254 and Rule 10, Rules of the Supreme Court

of the United States (1995).

¢

STATEMENT OF THE CASE (FACTS)

Petitioner was arrested pursuant to warrant and

charged with an eighteen year old homicide. After having

been bound over for trial following a two-day prelimi-

nary hearing, DNA results from some untagged, uniden-

tified women’s pants, which may or may not have been

the victim’s, resulted in the prosecutor dismissing the

charges. Petitioner sued for malicious prosecution. The

district court granted summary judgment. The Tenth Cir-

cuit Court of Appeals affirmed.

A. The crime, generally, and the initial probable cause

regarding the Petitioner.

1. On or about November 26, 1972, a murder

occurred in Uintah County, Utah (hereafter the

“County”). Gregory Nickells was shot and killed while

sitting in his car with a female companion at a remote

overlook. The female companion, Ranelle Stanger (hereaf-

ter sometimes referred to as “the Victim”), was raped and

eventually released by the murderer and his companion.

2. After the homicide, Susan Dixon, Petitioner’s

Stepdaughter (hereafter “the Stepdaughter”) talked to

Detective Ladd of the Salt Lake County Sheriff’s Office,

declaring that her stepfather, the Petitioner, had admitted

to the murder under circumstances which indicated his

involvement. (Supp. App.! at 1-150.) See paras. 25-32,

below, for details.

3. She was so reliable that a recorded statement was

taken from her, before Detective Ladd and Don Sawaya of

the Salt Lake County Attorney’s Office. (Supp. App. at

1-14.)

4. Susan Dixon was even willing to take a poly-

graph examination concerning her statements. (Supp.

App. at 14.)

5. Her statement was so reliable that it was sent to

Arden Stewart, the Uintah County Sheriff, for his use.

However, Sheriff Stewart does not recall ever having

received the transcribed statement. (Supp. App. at 192.)

6. Sheriff Stewart later opined that that statement

must have been accidentally placed in an inactive or

completed portion of his investigation file. (Supp. App. at

196.)

7. Sheriff Stewart’s investigation became inactive.

1 References to Supp. App. are to the Supplemental

Appendix filed with the Tenth Circuit Court of Appeals.

ee

B. Additional investigation by Sheriff Meacham.

8. In 1991, Lloyd Meacham, the Respondent herein

(hereafter “the Sheriff”), was Sheriff of the County and

began to review the unsolved murder. (Supp. App. at

203.)

9. He came across the transcribed statement of

Susan Dixon and found it so reliable that he began doing

follow-up on it. (Supp. App. at 212, 462.)

10. He re-interviewed the Stepdaughter (by then

Susan Dixon Saxton) twice. (Supp. App. at 15-65, 203-204,

210-217).

11. He re-interviewed the Victim (by then Ranelle

Simmons) twice. (Supp. App. at 206-210, 219-254,

255-271.)

12. He did significant other follow-up investigation.

C. Independent actions by the County Attorney and

Judges leading to Petitioner’s arrest and incarcera-

tion.

13. Eventually, Sheriff Meacham went to the Uintah

County Attorney with the evidence for screening for

prosecution. The County Attorney, in an independent

review, found the information so reliable that he felt

sufficient probable cause existed and authorized prosecu-

tion pursuant to Utah Code Ann. § 17-18-1(1)(b) and

(3)(b); § 77-2-1; Rule 5(b) Ut.R.Crim.Proc.

14. An Affidavit of Probable Cause concerning the

murder was prepared; it was executed by Sheriff Meac-

ham before the Honorable A. Lynn Payne, State District

Judge, on or about August 11, 1992, who issued an arrest

warrant. (Supp. App. at 197-218, 292).

15. On September 10, and 11, 1992, a two-day pre-

liminary hearing was held before a different judge, the

Honorable John R. Anderson. Petitioner was represented

by counsel, and confronted the witnesses against him.

(Supp. App. at 66-150, 151-196, 273-384, 385-415, 416-427,

428-437, 438-460, 461-501.) The witnesses included the

Stepdaughter and the Victim. (Supp. App. at 66-150,

273-384.)

16. After the preliminary hearing, the court found

the testimony of the Stepdaughter and the Victim suffi-

cient for probable cause and bound the Petitioner over for

trial.

D. The Murder, Kidnapping and Rape.

17. The Victim stated that on November 26, 1972,

she and a Gregory Nickells had parked at an overlook

near Vernal, Utah in the evening. (Supp. App. at 198, 206,

307-308.)

18. A stranger tapped on the car window, indicating

that he had had car trouble. (Supp. App. at 198, 206, 310.)

The stranger then pulled a gun and shot Greg several

times. (Supp. App. at 198, 313.) The Victim describes the

shooting in some detail, including seeing fire shoot out of

the muzzle of the gun, a fact relating to shooting not

generally known unless experienced. (Supp. App. at 207,

502.)

19. The murderer then got into the car, pushing

Greg over onto the Victim, and drove away. (Supp. App.

acini sciatica

at 198, 314), soon linking up with another car driven by

an accomplice. (Supp. App. at 198-199, 207, 279, 324, 326.)

20. Eventually the Victim was raped by the mur-

derer (Supp. App. at 199, 207, 280, 325, 505), and later by

the accomplice (Supp. App. at 199, 207, 285, 340, 342, 343,

507).

21. The perpetrators eventually burned Greg’s car

with his body in it. (Supp. App. at 199, 207.)

22. The perpetrators eventually released the Victim

who ran to a rural home, where she broke down emo-

tionally in front of the residents, which added to her

credibility. (Supp. App. at 200, 508.)

23. The authorities found the burned car with

Greg’s body in it, consistent with her story. (Supp. App.

at 153, 201.)

24. The Victim was examined at a hospital, and

given a polygraph, showing her reliable. (Supp. App. at

240-241.)

E. Probable Cause for Petitioner’s Arrest.

The following probable cause known to the Sheriff is

just part of the evidence of guilt known at the time.

Evidence is often broken into two parts, (a) evidence

known prior to arrest, most of which was presented in

the affidavit for the search warrant, and (b) corroborating

evidence known after arrest.

- =

6

(1) Petitioner admitted/confessed to committing

the murder under circumstances which indi-

cated that he did.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

25. The Stepdaughter stated? and testified® that on

November 26, 1972, her stepfather, the Petitioner, came

home in Salt Lake City about 10:00 a.m. (Supp. App. at 1,

204.)

26. He was “upset, anxious, pacing, paranoid.”

(Supp. App. at 1, 2, 68, 144-145, 204.)

27. He smelled like a bonfire, strong smoke smell.

(Supp. App. at 1, 204-205, 213.)

28. He left and returned at 7:00 p.m., still “para-

noid, anxious.” (Supp. App. at 1, 16, 144, 204, 213.) He

kept looking outside through the curtains. (Supp. App. at

204-205.) She testified, “I’ve never seen him like that. I’ve

seen him a lot of ways, but not like that.” (Supp. App. at

144-145, 205.)

29. When asked why he was so nervous, he confes-

sed that he had “just killed a guy, shot him and then

burned him up in a car.” (Supp. App. at 2, 7, 15, 70,

120-121, 143-144, 145.)

2 References to statements or reporting are to statements

given other than testimony.

3 References to testifying are to the preliminary hearing

testimony.

30. He stated that he had killed the man over a drug

deal which had gone sour, and mentioned the name of

the murder victim, Nickells. (Supp. App. at 121, 202, 204.)

31. Later, on the 10:00 p.m. news, the Stepdaughter

heard of the homicide in Vernal and the Victim’s having

been burned in his car. just as the Petitioner had

described. (Supp. App. at 5, 15, 22, 119, 205, 211.)

32. He described what had happened “before it was

even on the news.” (Supp. App. at 15, 119, 205, 211.)

Detective Ladd verified that the first news report of the

incident was at 10:00 p.m., enhancing the Stepdaughter’s

reliability.

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

33. Timothy Kent Redman was a prisoner housed in

the cell with the Petitioner during Petitioner’s prelimi-

nary hearing. After he talked with the Petitioner, he

wrote down notes of the conversations, and gave a state-

ment. (Supp. App. at 510-519.)

34. Petitioner told his cellmate that his:

[D]aughter-in-law remembers what he said that

day after he killed soldier boy. Whatever that

means. Okay, um, said his wife is scared, won’t

say anything against him because she’s scared

to.

(Supp. App. at 511.) The mention of “soldier boy” added

reliability to the cellmate. The murder Victim had

recently been discharged from the service, a fact

unknown to the cellmate.

35. The cellmate stated:

Then he [Petitioner] . . . said something after

[the] preliminary [hearing] that he was lucky

that the chick that was in the car couldn’t

remember that he was left handed ‘cause some-

thin about twirling a gun. He was twirlin’ a gun

and she remembered the wrong hand so he was

really lucky.

(Supp. App. at 511.)

36. Redman continued:

Apparently somethin’ happened. He said they

drew a picture of the cowboy hat on him and

she, he was scared she was goin’ to remember

him that way with the hat on it. He was nervous

about that. I don’t know if that makes any sense.

It, its somethin’ he really rattled on a lot about

the cowboy hat. Scared she might, scared

because she remembered he was a cowboy .. .

(Supp. App. at 512.)

37. He continued:

That he felt good that she couldn’t remember he

was left handed. He said that she remembered me

twirling the gun around but she thought I was

doin’ it with this hand while I was driving. He

goes it was the other way.

(Supp. App. at 514.)

(2) Petitioner did have drug dealings in the Vernal

area and knew the area well.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

38. The Petitioner dealt drugs and often went to

Uintah County for that purpose. (Supp. App. at 2, 9, 19,

134.)

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

39. David Reynolds, a close friend of Petitioner dur-

ing 1972, was aware of Petitioner’s large drug dealings in

that area. (Supp. App. at 386, 390, 405.)

40. Steven Allred, an alcohol/drug rehabilitation

director and counselor, a reformed drug user (Supp. App.

at 417), knew the Petitioner in 1972, and his drug dealings

in Uintah County. (Supp. App. at 417-418.) Petitioner

went there several times a week to sell drugs. (Supp.

App. at 2, 7, 9, 19, 67, 100, 389, 417-418, 419, 672, 683-684,

706.)

41. George D. McKinney, a resident of the area,

recognized Petitioner’s picture from the newspaper, and

identified him as being there shortly before the murders.

10

(3) Petitioner denied knowledge of any contacts

with the Duchesne/Vernal area.

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

42. After his arrest, Plaintiff denied to the police

that he had ever been in the Uintah County area. (Supp.

App. at 475, 481, 716.) Later, he indicated that he had

been in that area only once eight years before. (Supp.

App. at 525-526.)

(4) The murderer bragged of raping a thirteen year

old, as did Petitioner.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

43. The Victim testified and reported that the killer

said he had raped a thirteen-year-old girl and bragged

about other rapes. (Supp. App. at 208, 227, 334, 372, 502,

508.)

44. The Stepdaughter testified and stated that sev-

eral times the Petitioner had bragged about raping a

thirteen-year-old. (Supp. App. at 4, 71, 126, 128, 208, 213.)

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

45. Steven Allred and David Reynolds testified and

had reported that after the homicide Petitioner bragged

about rapes, including one in the Uintah County area.

(Supp. App. at 405, 420, 421, 540, 576-577, 671, 675.)

11

(5) The murderer was enamored with cowboy out-

laws, as was Petitioner, both even stating they

were descended from outlaws.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

46. The Victim testified and had reported that the

killer talked a lot about the Old West and being like

western outlaws like Jesse James. (Supp. App. at 199-200,

208, 219-220.)

47. The killer even talked of having horses ready for

a getaway, as if pretending to be a western outlaw. (Supp.

App. at 199, 208-209, 287, 333, 507.)

48. The Victim testified and reported that the killer

played with his gun a very lot. (Supp. App. at 504.) He

“enjoyed his gun,” and was “very busy with it.” (Supp.

App. at 278.)

49. The Stepdaughter testified and earlier stated

that Petitioner had a lot of interest in western outlaws.

(Supp. App. at 214.) He even named one of his sons,

“John Wesley” after the Old West outlaw John Wesley

Harden. (Supp. App. at 73.) “Western outlaws were like

his heroes and he would play like he was one.” (Supp.

App. at 73, 214.) He “fantasized western.” (Supp. App. at

80.) He stated he was descended from a western outlaw.

(Supp. App. at 214.) He twirled and played with his gun a

lot. (Supp. App. at 214-215.)

50. The Stepdaughter testified that Petitioner had a

lot of books in his home about Old West outlaws. (Supp.

App. at 73.) See para. 54, below, corroborating her state-

ment.

12

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

51. Petitioner’s wife confirmed Petitioner’s strong

interest in Old West outlaws. (Supp. App. at 661.)

52. David Reynolds testified that the Petitioner

“admired the old west,” and tried to be like John Wesley

Harden, after whom he named his child (Supp. App. at

387, 541), and Jesse James and Dillinger (Supp. App. at

387), and had a lot of western books (Supp. App. at

578-579).

53. He twirled his gun (Supp. App. at 403, 541-542),

and claimed to be a descendant of Butch Cassidy. Id.

Petitioner played with guns a lot, twirling them and

showing them off. (Supp. App. at 389, 419.)

54. The search of Petitioner’s home revealed the

following old west books which corroborated the Step-

daughter and Mr. Reynolds:

A Dynasty of Western Outlaws

b. The Complete and Authentic Life of Jesse

James

c. Who Rides with Wyatt

d. The Dalton Gang

e. They Died with Their Boots On

f. Doc Holiday

g- The Dillinger Days

h. Wild, Woolly & Wicked

13

i. The Great Train Robbery

j. Rifle for Rent

(6) Petitioner denied any interest in cowboys.

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

55. Petitioner denied he ever had interest in western

outlaws or cowboys. (Supp. App. at 735.)

(7) The killer talked of his horse named Trigger, as

did Petitioner.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

56. The Victim testified and had stated that the

killer talked about horses and indicated that he had a

horse named Trigger. (Supp. App. at 199, 209, 282.)

57. The Stepdaughter testified that she believed ear-

lier in his life Petitioner had horses. (Supp. App. at 205,

215.) He had talked of a horse named Trigger, but that

may have been a fantasy, she said. (Supp. App. at 27, 80,

199-200, 215.)

14

(8) The killer wore cowboy boots the same size as

those of Petitioner in length of heel and width

of sole.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

58. The killer wore cowboy boots. (Supp. App. at

217.)

59. The Stepdaughter stated that the Petitioner wore

cowboy boots. (Supp. App. at 217.)

60. Reynolds testified Petitioner would “always

wear cowboy boots.” (Supp. App. at 387, 561-562.)

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

61. At the crime scene, plaster casts were made of

cowboy boot prints where the killer walked. The casts

matched boots of the Petitioner almost exactly. (Supp.

App. at 482.)

(9) The car used by the murderer had orangeish

colored, lace-up work boots like those worn by

the Petitioner.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

62. Inside the car of the perpetrators was a pair of

“orangeish color” work boots which lace up the front.

(Supp. App. at 200, 296, 324, 507.)

15

63. The Stepdaughter described Petitioner’s work

boots as “burnt orange/tan.” (Supp. App. at 28, 206.)

Allred testified that Petitioner had “reddish tan” work

boots which lace up the front. (Supp. App. at 422, 427,

693.) Petitioner’s wife also confirmed such boots. (Supp.

App. at 635.)

(10) The killer got upset when his accomplice

called him a name which could have been a

unique nickname of Petitioner.

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

64. The Victim testified and had stated that the

accomplice called the killer “Robert, . . . or something

that sounds like Robert. . . .” She could not hear the exact

name. (Supp. App. at 283, 331, 336-337, 370, 509.) The

killer became very upset and thereafter the killer and the

accomplice began to call each other George I and George

II. (Supp. App. at 283, 509.)

65. David Reynolds and the Stepdaughter testified

that the Petitioner had a unique nickname, “Redbird,”

(Supp. App. at 102, 398). Paul Champneys so stated also.

(Supp. App. at 776, 780, 807, 809.)

16

(11) The killer used a revolver with a pearl or light

handle, as did Petitioner.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

66. The killer’s revolver which he used had light-

colored, or pearl handles. (Supp. App. at 217, 316.)

67. The Stepdaughter stated Petitioner had a pearl

handled revolver. (Supp. App. at 217.)

68. The Petitioner had been arrested with a pearl

handled revolver. (Supp. App. at 443.)

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

69. David Reynolds testified that the Petitioner had

a pearl handled revolver. (Supp. App. at 388.)

(12) The car used by the killer was light-colored

with an American flag and another decal, as

was Petitioner’s car.

(a) Probable Cause Known Prior to Peti-

tioner’s Arrest.

70. The Victim testified and had reported that the

car which the killer and the accomplice occupied, which

she only saw at night under artificial light, was “light

colored.” (Supp. App. at 198, 502, 503, 509.) She stated,

“light color, maybe a cream or light gold or something.”

(Supp. App. at 509.) She also stated: “The only thing I

17

could notice was it was a light-colored car.” (Supp. App.

at 502.)

71. The Victim testified and had reported that the

car had two decals in a back window: an American flag,

and another about Jackson Hole. (Supp. App. at 200, 288,

509.)

72. The car had a square trunk. (Supp. App. at 509.)

The killer cussed it as a Ford, either its real make or

merely an epithet about how it ran. (Supp. App. at 509.)

73. The Stepdaughter testified and had reported

that her mother’s car, a white Chevrolet, 1963, had two

stickers in a back window, one an American flag, but she

didn’t know what the other was. (Supp. App. at 69, 103,

216.)

(b) Probable Cause Known Shortly After

Arrest Corroborating the Original Proba-

ble Cause.

74. The Petitioner and his wife had been to Jackson

Hole before the homicide, and they did collect window

stickers. (Supp. App. at 630, 632.)

¢

MISSTATEMENTS OF FACT

While Petitioner’s statement that the victim, Stanger,

never identified Petitioner (Pet. at 3) is true, it implies

that he was never identified. However, his stepdaughter,

to whom he confessed the crime, clearly identified him.

18

Petitioner declares that the individual defendant

falsely stated to the victim that someone in a photo line-

up had confessed (Pet. at 3). One of the persons in the

line-up, the Petitioner, had confessed to his stepdaughter.

See Statement of Case, above, at paras. 25-32. The victim,

who had only seen the killer at night, could not identify

the Petitioner, but also could not exclude him.

The Petitioner did fit the description of the assailant,

contrary to Petitioner’s allegation.

¢

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES

AND REGULATIONS

42 U.S.C. § 1983; Fourth Amendment to the Constitu-

tion; Fourteenth Amendment to the Constitution.

é

SUMMARY OF ARGUMENT

Because the lower court recognized a federal cause of

action for malicious prosecution, Petitioner’s request for

this Court to recognize such a cause of action would only

result in an advisory opinion. If this Court also recog-

nizes such a cause of action, the Petitioner will not obtain

relief because the lower court also found that factually

the Petitioner was not entitled to relief under such a

cause of action. If this Court does not recognize such a

cause of action, the legal basis for Petitioner’s claim fails,

and he is again without relief through an advisory opin-

ion.

19

All of the circuit courts agree that the common law

elements of the tort of malicious prosecution, including

lack of probable cause, are elements of a federal cause of

action, although the circuit courts may disagree on addi-

tional elements. Because the lower court in this case

found ample probable cause, any resolution of the ele-

ments by this Court, which would undoubtedly include

lack of probable cause, would leave Petitioner with no

relief, and this Court’s opinion would again be advisory

only.

Petitioner’s real criticism is with the lower court's

analysis of massive, complex facts, which this Court

rarely reviews.

¢

ARGUMENT

POINT I

PETITIONER ASKS THIS COURT TO REASSESS

IMMENSE FACTUAL DATA, NOT A USUAL FUNC-

TION OF THIS COURT.

This Court rarely accepts certiorari to reassess a

lower court’s factual analysis. See, e.g. Rules of the

Supreme Court of the United States, Rule 10 (1995);

United States v. Johnston, 268 U.S. 220, 227 (1925) (“We do

not grant a certiorari to review evidence and discuss

specific facts.”); Texas v. Mead, 465 U.S. 1041 (1984)

(Stevens, J.); NLRB v. Hendricks County Rural Electric

Corp., 454 U.S. 170, 176 n.8 (1981) (improvident grant of

certiorari which presented primarily a factual question,

“which does not merit Court review.”); Graver Mfg. Co. v.

Linde Co., 336 U.S. 271, 275 (1949) (This Court is “a court

20

of law ... rather than a court for correction of errors in

fact finding .. . ”).

Petitioner states that the only issue in his Petition is

the simple legal issue concerning the existence of a fed-

eral malicious prosecution claim. See Petition at p.i: Ques-

tion Presented. However, Petitioner’s real complaint is

with the lower court’s factual analysis concerning the

application of malicious prosecution to him which

resulted in a finding that Petitioner was not entitled to

relief.

Petitioner spends most of his argument in his Petition

excoriating the Court of Appeals for its factual analysis

under malicious prosecution. See, e.g. Petition at pp.

12-14, 11. Only page 15 of his Petition sets out Petitioner's

argument with respect to the only question he declares as

being at issue. The following are partial quotes from the

Petition herein which illustrate that Petitioner’s concern

is with the lower court’s factual analysis: “A. Factual

Problems,” (Pet. at 12; bold in the original); “two flaws in

its [the lower court’s] factual analysis .. . ” Id.; “This

[factual] analysis initially fails because ...” Id.; “The

analytical approach [concerning the facts] . . . reenforces

the very evil...” Id.; “The factual analysis . . . fails in the

reality ...” Id.; “The analysis . . . whereby it [the lower

court] ignored exculpatory information . . .” (Pet. at 13);

“The second major problem with the factual analy-

sis . . . demonstrates the analysis was erroneous.” [d.;

“. . . yet another example of how the Tenth Circuit

. .. did not contemplate the record before it . . . ” (Pet. at

14); “In summary, the factual analysis .. . ” Id.; “The

Tenth Circuit substituted its factual judgment for that

Bina” &

ae

21

Factually this case is immense. Petitioner himself

admits that “hundreds of pages of documents exist with

respect to the investigation” at issue. (Pet. at 3.) This

Court rarely engages in reviews of such issues and mate-

rials, and no reason exists for it to do so here.

In addition, Petitioner’s claimed legal issue (even if

the legal issue is viable, which is disputed, see Point II,

below), is so factually intertwined and enmeshed that this

Court would need to reanalyze the complex facts in order

to grant Petitioner relief. See Point II, below.

POINT II

A DECISION ON THE ASSERTED LEGAL ISSUE

WOULD NOT PROVIDE PETITIONER ANY RELIEF

AND WOULD BE AN ADVISORY OPINION.

This Court does not give advisory opinions. National

Bank of Oregon v. Insurance Agents, 508 U.S. 439, 446, 113

S.Ct. 2173 (1993), citing Preiser v. Newkirk, 422 U.S. 395,

401, 95 S.Ct. 2330 (1975) (“a federal court [lacks] the

power to render advisory opinions .. . ”).

(THE EXISTENCE OF A MALICIOUS

PROSECUTION CLAIM)

In the present case, Petitioner brought a malicious

prosecution action under 42 U.S.C. § 1983. Petitioner

admits that the Tenth Circuit Court of Appeals found in

his favor that such a cause of action exists (Pet. at 6, 11,

and 15), and that a majority of the circuit courts also

recognized such a cause of action (Pet. at 7). The lower

court found, however, that Petitioner was not entitled to

22

relief factually under malicious prosecution. See Point I,

above.

Because the lower court recognized a cause of action

for malicious prosecution and yet factually found the

cause inapplicable to Petitioner, this Court’s affirmance of

the lower court’s recognition of malicious prosecution

would not provide relief to Petitioner. Factually, the cause

of action would still not apply to Petitioner, and the

opinion would be advisory only. On the other hand, a

holding by this Court that there is no such cause of action

would also afford Petitioner no relief, because Petitioner

relied on such a cause. Again, the opinion would be

advisory.

(ELEMENTS OF A MALICIOUS

PROSECUTION CLAIM)

Petitioner argues that this Court should resolve the

varying way the circuit courts describe the elements of

malicious prosecution. However, Petitioner would realize

no relief from such a resolution.

The primary difference among the circuit courts

regarding the elements of malicious prosecution is

whether the elements comprehend 1) only the common

law elements of the tort, or 2) those common law ele-

ments plus a constitutional violation. (See the Tenth Cir-

cuit Court’s synopsis of the circuit court cases at Pet.

App. at 7-10.) All of the circuit courts require, at least, the

common law elements. Id. Petitioner admits that the

Tenth Circuit Court, “reconciling” prior Tenth Circuit

cases, held that a malicious prosecution analysis starts

23

with “the common law elements of malicious prosecu-

tion,” but ends with necessary proof of a “constitutional

violation.” (Pet. at 10; App. at 10.)

Lack of probable cause is one of the common law

elements as recognized by all of the circuit courts.

Because the lower court found as a matter of factual

analysis that ample probable cause existed (Pet. App. at

11-16), under any recitation of elements, which would

undoubtedly include lack of probable cause, Petitioner's

claim fails. Therefore, any resolution of the elements of

malicious prosecution by this Court would afford Peti-

tioner no relief and would again amount only to an

advisory opinion.

Petitioner fails to show how the lower court's recita-

tion of the elements resulted in error to him, nor how an

allegedly more appropriate recitation of elements, which

again would undoubtedly include lack of probable cause,

would change the result in his case, considering the

immense weight of the facts against him. In short, Peti-

tioner merely seeks an advisory opinion on malicious

prosecution and the elements thereof.

(LACK OF IMPORTANCE)

This case is not of great public importance or interest.

By holding that a malicious prosecution action exists, and

properly holding that lack of probable cause is an ele-

ment thereof, the lower court has, at most, provided

potential federal protection to some persons oppressed

by law enforcement. By finding, however, that Petitioner

did not factually carry the day, the lower court also

24

protected law enforcement officers who acted appro-

priately on weighty probable cause. Petitioner is also not

harmed because, factually, he was never entitled to relief

under malicious prosecution. This Court’s eventual opin-

ion of the lower court’s recognition of malicious prosecu-

tion and the elements thereof should await a proper case

and controversy which may provide the appropriate

importance for consideration by this Court.

¢

CONCLUSION

This Petition should be dismissed as frivolous

because Petitioner has shown 1:0 way in which he was

prejudiced by the lower court's recognition of a malicious

prosecution claim or the elements thereof, and because

his only real complaint is with the lower court’s factual

analysis of immense probable cause.

RESPECTFULLY SUBMITTED this 20th day of

August, 1996.

Rosert R. WALLACE,

Counsel of Record

Attorney for Respondents

4 Triad Center, Suite 500

Salt Lake City, Utah 84180

(801) 363-7611