Petition for Writ of Certiorari — Zaharia v. Municipal Court

Bupreme Court, U.S.

RILED

; SEP 29 1992

forsee OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

RONALD HENRY ZAHARIA, TERRY LEE MITTELSTAEDT and

all those similarly situated,

Petitioners,

VS.

THE MUNICIPAL COURT, CITY OF AURORA, COLORADO,

THE HONORABLE JOHN L. SPRINGER, one of its judges, and

the CITY OF AURORA, COLORADO, a Colorado Municipal

Corporation organized as a Home Rule Municipality under

Article XX of the Colorado Constitution,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

WHITE, PICKARD & HERREN

Jeffrey N. Herren, #11374

5353 West Dartmouth Ave., Suite 500

Denver, Colorado 80227

Telephone (303) 989-6655

QUESTIONS PRESENTED FOR REVIEW

Does a municipality that commands the arrest, pre-

trial detention pending the posting of bond, and trial upon

pain of fine and imprisonment by a tribunal acting without

Subject matter jurisdiction, commit violations nsing to the

level of constitutional dignity required for 42 U.S.C. § 1983

liability?

PARTIES BELOW

Petitioners, RONALD HENRY ZAHARIA, TERRY LEE

MITTELSTAEDT, as individuals were plaintiff-appellants

before the Tenth Circuit Court of Appeals, along with all

persons similarly situated, although class certification had

been deferred by the United States District Court for the

District of Colorado.

Respondents THE MUNICIPAL COURT, CITY OF

AURORA, COLORADO, THE HONORABLE JOHN L. SPRINGER,

one of its judges, and the CITY OF AURORA, COLORADO

were defendant-appellees before the Tenth Circuit Court of

Appeals, although THE MUNICIPAL COURT, CITY OF

AURORA, COLORADO and THE HONORABLE JOHN L.

SPRINGER have disclaimed any interest in defending the

subject lawsuit and stipulated that they would follow any

ruling of the Courts of the Untied States.

li

TABLE OF CONTENTS

Questions Presented for Review ................cc.cccccsssccccsscssssceseees i

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Table of United States Constitutional Authority............. vi

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Table of Municipal Ordinances................ccsssecsceeeseeeeeeees Vi

I INI sc snasansencanonasncabednededbausnnéecseasecses 2

Constitutional and Statutory Provisions involved in

I UiLeaitiaidiithnpseniinswednnsdnsnacvenansdsnansashasavscansniereavssnaeiese 2

Basis of Federal Jurisdiction for the Court of Appeals

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a na Zhe isiaen sahadlaanivasisnenbieibiccinionrs 4

I IE, WPT 5 cca stent sntnsncnicennsonasssseeicossratecasses 7

A. Fundamental fairness and due process require

that a person not be twice placed in jeopardy

OR GG GAINS CLIMMIDAL CHATRE. ..........cccccsvcosesenssesocsseeee 9

B. The fact of acquittal in a court lacking subject

matter jurisdiction cannot change the

character of the deprivation of due process. ........... 10

I 13

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Appendix

Memorandum Opinion And Order.................:ccceceeeeeseeees la

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Order And Judgment On Appeal ...................ccceeceeeeeeees 16a

Order Denying Petition For Rehearing .....................008 18a

iV

Table of Authoriti

Table of

Benton v. Maryland,

395 U.S. 784, 23 L.Ed.2d 707, 89 S.Ct. 2056 (1969)

Board of Regents v. Roth,

408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972)

Boyd v. United States,

116 U.S. 616, 29 L.Ed. 746, 6 S.Ct 524 (1886)

Daniel v. Warden, State Correction Institution,

794 F.2d 880 (3rd Cir. 1986)

Daniels v. Williams,

474 U.S. 327, 88 L.Ed.2d 662, 106 S.Ct. 662 (1986)

Duncan v. Louisiana,

391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968)

Grafton v. United States,

206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084 (1907)

Green v. United States,

355 U.S. 184, 2 L.Ed.2d 199, 78 S.Ct. 221, 61 ALR2d

1119 (1957)

Ingrahm v. Wright,

430 U.S. 651, 51 L.Ed.2d 711, 97 S.Ct. 1401 (1977)

Kinsella v. United States,

361 U.S. 234, 4 L.Ed.2d 268, 80 S.Ct. 297 (1960)

Meachum v. Fano,

427 U.S. at 224, 49 L.Ed.2d 451, 96 S.Ct. 2532 (1976)

Palko v. Connecticut,

302 U.S. 319, 82 L.Ed.2d 288, 58 S.Ct. 149 (1937)

Powell v. Alabama,

9,10

1]

13

11,12

11

287 U.S. 45, 77 L.Ed. 158 (1932) 7, 8, 13

Reid v. Covert,

354 U.S. 1, 1 L.Ed.2d 1458, 77 S.Ct. 1222 (1957)

Stephens v. Zant,

631 F.2d 397 (Sth Cir. 1980) 8

United States v. Ball,

163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1986) 8

Tabl nl tun n

Fifth Amendment 3

Fourteenth Amendment 2

Fourth Amendment 3

Table of Statutes

28 U.S.C. § 1254 2

28 U.S.C. § 1291 3

42 U.S.C. § 1983 2,11, 12

Table of Municipal Ordinan

Section 27-1 13(a), CITY CODE, CITY OF AURORA

7

nan fk Or nN

Section 27-37, CCITY CODE, CITY OF AURORA 4

Section 27-38, CCITY CODE, CITY OF AURORA 4

Section 27-39, CITY CODE, CITY OF AURORA

Section 27-40, CITY CODE, CITY OF AURORA

Section 27-89(1), CITY CODE, CITY OF AURORA

vl

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

RONALD HENRY ZAHARIA, TERRY LEE MITTELSTAEDT and

all those similarly situated,

Petitioners,

VS.

THE MUNICIPAL COURT, CITY OF AURORA, COLORADO,

THE HONORABLE JOHN L. SPRINGER, one of its judges, and

the CITY OF AURORA, COLORADO, a Colorado Municipal

Corporation organized as a Home Rule Municipality under

Article XX of the Colorado Constitution,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, RONALD HENRY ZAHARIA, TERRY LEE

MITTELSTAEDT, as individuals, and on behalf of all

individuals similarily situated, pray this Honorable Court

grant Certiorari to the United States Circuit Court of Appeals

for the Tenth Circuit to review its holding of March 19, 1992,

upholding the United States District Court for the District of

Colorado’s July 17, 1990, Memorandum Opinion and Order

whilch held that subject matter jurisdiction is not an essential

element of due process of law.

JURISDICTIONAL STATEMENT

A Memorandum Opinion and Order entered in the

district court case on July 17, 1990 (Appendix, p. 1a).

Judgment was entered »pon the Memorandum Opinion and

Order on July 18, 1990 (Appendix, p. 14a). Appeal was

taken and denied by the United States Court of Appeals for

the Tenth Circuit in a judgment filed March 5, 1992

(Appendix, p. 16a). A Petition for Re-hearing with a

suggestion for rehearing en banc was filed on March 19,

1992. The Petition was denied on July 1, 1992 (Appendix, p.

18a). Jurisdiction is conferred to this Court pursuant to 28

U.S.C. § 1254 in that this Court has jurisdiction to review

decisions of the United States Court of Appeals.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS MATTER

Title 42 United States Code § 1983 holds,

Section 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State...

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

Suit in equity, or.other proper proceeding for redress

Section 1 of the Fourteenth Amendment to the

Constitution of the Untied States; provides,

All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States: or shall any State

deprive any person of life. liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

The Fourth Amendment to the Constitution of the

Untied States provides,

The night of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.

The Fifth Amendment to the Constitution of the

Untied States states,

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use, without

just compensation.

BASIS OF FEDERAL JURISDICTION FOR THe

COURT OF APPEALS FOR THE TENTH CIRCUIT

The Court of Appeals had jurisdiction over this matter

pursuant to 28 U.S.C. § 1291 in that it has jurisdiction of

appeals from all final decisions of the District Court for the

District of Colorado.

STATEMENT OF FACTS

On April 18, 1986, the UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO (Kane, J.) held that

$§ 27-37 and 27-38, CITY CODE OF THE CITY OF AURORA,

were void and unenforceable in that the penalty provision of

said ordinances exceeded the delegation of authority to

municipalities.!. Notwithstanding a final order of the United

States District Court for the District of Colorado finding the

ordinances in question unenforceable, Respondents still

attempted to exercise jurisdiction over persons brought

before them under said ordinances, arresting them and

requiring that they post bond and defend themselves at trial

on charges that cannot lawfully result in punitive sanction.

Petitioner ZAHARIA was a defendant before the

AURORA MUNICIPAL COURT on Summons number R-39944,

having been arrested, held until bond was posted, and

charged with violating Sections 27-37, 27-38, and 27-39,

CITY CODE OF THE CITY OF AURORA, Assault, Battery, and

Reckless endangerment, respectively. The charge of

Reckless endangerment appeared to have been based upon an

allegation that Petitioner ZAHARIA held a knife to a woman's

throat and told her that if she were to move he would kill her.

The only evidence presented at trial on this issue was a knife

and hearsay statements; the alleged victim invoked her rights

under the Fifth Amendment not to testify.

Petitioner ZAHARIA challenged the jurisdiction of the

AURORA MUNICIPAL COURT over the subject matter of

Aurora v. Green, 86-CR-20 (D.Colo. 1986). Not included in

materials submitted with this Petition as neither the finding nor the effect

are in dispute. The case is summarized by the district court at page 11 of

the Appendix.

Summons and Complaint R-39944, and his MOTION TO

DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION was

set for determination by a three judge panel of the Aurora

Municipal Court. After the CITY OF AURORA failed to

submit its brief for consideration on that matter, on the

morning the case was scheduled for oral argument before the

three judge panel, November 21, 1989, the CITY OF AURORA

moved to amend to dismiss all the originai charges against

Petitioner ZAHARIA and substitute charges of Sections 27-40,

27-113(a); and 27-89(1), CrTY CODE, CITY OF AURORA

‘False Imprisonment, Unlawful display and Disorderly

Conduct, respectively). Oral argument was stricken and the

Court, having permitted, over objection, amendment of the

Complaint by addition of those charges and dismissal of all

the original charges, found the issues of its subject matter

jurisdiction moot. This notwithstanding the objection that if

it lacked subject matter jurisdiction over all matters charged,

it was without jurisdiction to permit amendment of the

Complaint. Petitioner ZAHARIA was acquitted following jury

trial before the Respondent AURORA MUNICIPAL COURT on

February 1, 1990, and is thus without an avenue under the

State law to vindicate his rights with respect to two of the

three ordinances.

Petitioner TERRY LEE MITTELSTAEDT was a

defendant before the AURORA MUNICIPAL COURT on

Summons number R-44013, having been arrested, held until

bond was posted, and charged with violating Sections 27-37,

and 27-38, CITY CODE OF THE CITY OF AURORA, Assault

and Battery. Petitioner MITTELSTAEDT was set for trial to

jury on February 26, 1990. This action originally sought to

restrain the Respondents from trying Petitioner

MITTELSTAEDT and the Court had set the matter for hearing

on Petitioners’ MOTION FOR TEMPORARY RESTRAINING

ORDER on February 26, 1990. Prior to the scheduled hearing

on the temporary restraining order, it became apparent that

the CITY OF AURORA was unable to locate any witnesses who

would testify to having observed any conduct that would

constitute a violation of the ordinances charged. Believing

that the CITY OF AURORA would move to dismiss the

municipal prosecution, Petitioner MITTELSTAEDT withdrew

the MOTION FOR TEMPORARY RESTRAINING ORDER.

Following a day and one half trial, in which the CITY OF

AURORA called no perceiving witnesses to either of the

alleged violations, Petitioner MITTELSTAEDT was acquitted.

Petitioner MITTELSTAEDT was forced to defend against

charges that appear to be outside the subject matter

jurisdiction of the court that tried him and is left, because of

his acquittal, with no state law recourse to redress that

violation of due process.

Petitioners brought suit in the United States District

Court for the District of Colorado for damages and injunctive

relief2; In so doing, Petitioner Zaharia also challenged a

previous conviction for battery by the Aurora Municipal

Court, which conviction was on appeal at the time.? In

dismissing the Complaint herein the district court ruled:

Even if the Aurora Court lacked subject matter

jurisdiction because the municipal ordinances under

which Zaharia and Mittelstaedt were prosecuted were

pre-empted under state law — an issue this court need

not and does not decide — Plaintiffs have not

demonstrated that past prosecutions under the

Ordinances that resulted in acquittal are actionable

under section 1983 as violations of the Fourth and

Fourteenth Amendments to the federal constitution.

2 Class certification was deferred until determination of the

underlying legal issues with respect to liability.

3 The United States District Court for the District of Colorado

found that Younger v. Harris, 401 U.S. 37 (1971) abstention was

appropriate. Petitioners do no challenge this findings as to the then

pending matter; however, Zaharia has since been denied relief by the

Colorado courts.

They rely upon a passage in Powell v. Alabama, 287

U.S. 45, 68 (1932):

It never has been doubted by this court,

or any other so far as we know, that notice and

hearing are preliminary steps essential to the

passing of an enforceable judgment, and that

they, together with a legally competent

tribunal having jurisdiction of the cace,

constitute basic elements of the constitutional

requirements of due: process of law.

Plaintiffs admit and the court agrees that this language

was dicta. The sole issue before the court in Powell

was whether the trial court's failure to appoint counsel

deprived appellants of due process and equal

protection under the Fourteenth Amendment.

Plaintiffs have not cited -—— and the court has not

found — authority to support their position in this

case. I conclude that such past prosecutions, even if

based upon municipal ordimances that are pre-empted

by state law, do not rise to the level of constitutional

dignity required for a section 1983 liability.

(Appendix, pp. 1 la-12a)

Appeal followed to the Tenth Circuit Court of

Appeals where the case was briefed and argued. The Tenth

Circuit affirmed the district court without comment on the

merits, (Appendix, pp. 16a-17a), indicating only that they

were “not persuaded that the district court erred in granting

summary judgment for the City.” (Appendix, p. 17a).

REASONS FOR GRANTING WRIT

When this Court noted in Powell v. Alabama, 287

U.S. 45, 68 (1932) that it had never been doubted that subject

matter jurisdiction was basic to due process of law, that

pronouncement was a statement of well-established

constitutional law, presenting the reasoning underlying this

Court’s reasoning in a myriad of cases. The United States

District Courts are not free to ignore, without reasoned

authority, the statements of this Court as to the basic

underpinnings of United States Constitutional law. The

United States Circuit Court of Appeal for the Tenth Circuit

has let stand, without comment, a decision of the United

States District Court for the District of Colorado that openly

defies this Court’s pronouncements of basic due process of

law. This constitutes a departure by the district court and the

Tenth Circuit from the law as announced by this Court.

It is submitted that in finding that the passage from

Powell v. Alabama, supra, was dicta, the district court

ignored the argument that the principles so enunciated have

been so firmly rooted in American jurisprudence as to form

the unstated underpinning of numerous legal concepts for the

past two hundred years. Indeed, the protection of former

jeopardy, guaranteed by the Fourth, Fifth and Fourteenth

Amendments to the United States Constitution, depends upon

the tribunal having subject matter jurisdiction.

Under established law, individuals are not put in

jeopardy unless the court that tried them the first time

had jurisdiction to try them for the charges they

later seek to avoid. See Grafton v. United States, 206

U.S. 333, 345, 27 S.Ct. 749, 751, 51 L.Ed. 1084

(1907); United States v. Ball, 163 U.S. 662, 669, 16

S.Ct. 1192, 1194, 41 L.Ed. 300 (1986). In

determining whether the [state court] had jurisdiction

over [the charges], we must look to state law.

Stephens v. Zant, 631 F.2d 397 (Sth Cir. 1980),

reversed on other grounds, 462 U.S. 862, 103 S.Ct.

2733, 77 L.Ed.2d 235 (1983).

Daniel v. Warden, State Correction Institution, 794 F.2d 880

(3rd Cir. 1986). Emphasis added. Clearly, if the AURORA

MUNICIPAL COURT had no subject matter jurisdiction over

the charges upon which it compelled the Petitioners to

defend, their acquittal by that tribunal does nothing to lessen

the encroachment on the Bill of Rights and other safeguards

in the Constitution. If probable cause ever existed to

charge them with offenses against the peace and dignity

of the People of the State of Colorado, then the properly

constituted state authority may still commence a

prosecution in the state district courts against these

Petitioners. Such a prosecution could even make use of

their sworn testimony before the AURORA MUNICIPAL

COURT.

'

4.__Eundamental faimess. and due. process IeQuire _—

ey oy eosnyron ep mn amen Selagh of

In Benton v. Maryland, 395 U.S. 784, 23 L.Ed.2d

707, 89 S.Ct. 2056 (1969) this Court was called upon to

decide the question "Is the double jeopardy clause of the Fifth

Amendment applicable to the States through the Fourteenth

Amendment?" Benton v. Maryland, 395 U.S. 784, 786, 23

L.Ed.2d 707, 711, 89 S.Ct. 2056 (1969).

Our recent cases have thoroughly rejected the Palko

v. Connecticut, 302 U.S. 319, 82 L.Ed.2d 288, 58

S.Ct. 149 [(1937)] notion that basic constitutional

rights can be denied by the States as long as the

totality of the circumstances does not disclose a denial

of “fundamental fairness.” Once it is decided that a

particular Bill of Rights guarantee is “fundamental to

the American scheme of justice,” Duncan v.

Louisiana, {391 U.S. 145, 149, 20 L.Ed.2d 491, 496,

88 S.Ct. 1444 (1968)] the same constitutional

standards apply against both the State and Federal

Governments.

2

As this Court put it in Green v. United States, 355

U.S. 184, 187-188, 2 L.Ed.2d 199, 204, 78 S.Ct. 221,

61 ALR2d 1119 (1957), “[t]he underlying idea, one

that is deeply ingrained in at least the Anglo-

American system of jurisprudence, is that the State

with all its resources and power should not be allowed

to make repeated attempts to convict an individual for

an alleged offense, thereby subjecting him to the

embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that

even though innocent he may be found guilty.” This

underlying notion has from the very beginning been

part of our constitutional tradition. Like the right to

trial by jury it is clearly “fundamental to the

American scheme of justice.”

Benton v. Maryland, 395 U.S. 784, 795-796, 23 L.Ed.2d

707, 717, 89 S.Ct. 2056 (1969). In deciding that the

guarantee of double jeopardy is “fundamental to the

American scheme of justice” this Court clearly was

addressing the night of one accused by the State to have his

guilt or innocence finally determined by a competent

tribunal. Here it is clear that the finding of not guilty by the

AURORA MUNICIPAL COURT has no binding effect should a

Colorado district attorney file charges in a court of competent

jurisdiction; subjecting the Petitioners to the very evil this

Court indicated the Anglo-American legal tradition has so

long sought to avoid.

ee Sp werner F

Where the district court finds the fact of acquittals to

somehow lessen the constitutional magnitude of the violation,

it is submitted that if anything they increase it. Here,

innocent men were forced to defend themselves, on pain of

fines and imprisonment,’ and having successfully defended

themselves before one forum, could face essentially the same

4 And others continue to be subjected to arrest, pre-trial detention

pending the posting of bond, and trial upon pain of fine and imprisonment

by a tribunal acting without subject matter jurisdiction.

10

charges before a second forum, both claiming standing to try

the Petitioners under the Constitution of the State of

Colorado. But it is not the fact of acquittal or conviction

which establishes the constitutional magnitude, it is the fact

of being compelled, upon pain of loss of liberty and property,

to answer before a court which lacks jurisdiction to hold

Petitioners to account.

“(T]he range of interests protected by

procedural due process is not infinite.” Board of

Revents v. Roth, [408 U.S. 564 at 570, 33 L.Ed.2d

548, 92 S.Ct. 2701 (1972)]. We have repeatedly

rejected “the notion that any grievous loss visited

upon a person by the State is sufficient to invoke the

procedural protections of the Due Process Clause.”

Meachum v. Fano, 427 U.S. at 224, 49 L.Ed.2d 451,

96 S.Ct. 2532 (1976) Due process is required only

where a decision of the State implicates an interest

within the protection of the Fourteenth Amendment.

And “to determine whether due process requirements

apply in the first place, we must look not to the

‘weight’ but to the mature of the interest at stake.”

Roth, , at 570-571, 33 L.Ed.2d 548, 92 S.Ct. 2701.

Ingrahm v. Wright, 430 U.S. 651 at 672, 51 L.Ed.2d 711 at

731, 97 S.Ct. 1401 (1977). There is no question that the

penal depravation of liberty or property is an area within the

protection of the Fourteenth Amendment; the nature of the

interest therefore established that the violation is one of

constitutional dimension.

In his concurring opinion in Daniels v. Williams, 474

U.S. 327, 88 L.Ed.2d 662, 106 S.Ct. 662 (1986) Justice

Stevens reasoned:

Thus, even though the State may have every

right to deprive a person of his property or his liberty,

the individual may nevertheless be able to allege a

valid § 1983 due process claim, perhaps because a

predeprivation hearing must be held, or because the

-

L]

state procedure itself is fundamentally flawed. So

too, even thought a deprivation may be unauthorized,

a procedural due process claim may be raised if it

challenges the State's procedures for preventing or

redressing the deprivation. However, a complaint

does not state a valid procedural due process

objection — and a valid § 1983 claim — if it does not

include a challenge to the fundamental fairness of the

State's procedures.

Daniels v. Williams, 474 U.S. 327, 339, 88 L.Ed.2d 662, 673,

106 S.Ct. 662 (1986). Accordingly, it is submitted that the

allegations of the Complaint, establishing that the

prosecuuons were outside of the subject matter jurisdiction of

the AURORA MUNICIPAL COURT and that liberty and

property interests of the Petitioners were implicated, were

sufficient to plead a violation of due process in that the

fundamental fairness of the procedure is challenged.

In holding that a military court-martial did not have

subject matter jurisdiction to try civilian dependents of

military personnel stationed overseas>, this Court stated:

It is urged that the expansion of military

jurisdiction over civilians claimed here is only slight,

and that the practical necessity for it is very great’

The attitude appears to be that a slight encroachment

on the Bill of Rights and other safeguards in the

Constitution need cause little concern. But to hold

that these wives could be tried by the military would

be a tempting precedent. Slight encroachments create

new boundaries from which legions of power can

seek new territories to capture. "It may be that it is

the obnoxious thing in its mildest and least repulsive

form; but illegitimate and unconstitutional practices

get their first footing in tha: way, namely, by silent

approaches and slight deviations from legal modes of

5 Originally limited to capital cases, but extended in 1960 to all

cases by Kinsella v. United States, 361 U.S. 234, 4 L.Ed.2d 268, 80 S.Ct.

297 (1960) and its companion cases.

procedure. This can only be obviated by adhering to

the rule that constitutional provisions for the security

of person and property should be liberally construed.

A close and literal construction deprives them of half

their efficacy, and leads to gradual depreciation of the

right, as if it consisted more in sound than in

Substance. It is the duty of courts to be watchful for

the constitutional rights of the citizen, and against any

Stealthy encroachments thereon.” [Boyd v. United

States, 116 U.S. 616, 635, 29 L.Ed. 746, 6 S.Ct 524

(1886)].

Reid v. Covert, 354 U.S. 1, 39-40, 1 L.Ed.2d 1458, 1176, 77

S.Ct. 1222 (1957).

CONCLUSION

If there is no deprivation which rises to the level of

constitutional dignity required for a section 1983 liability

where a municipality commands the arrest, pre-trial detention

pending the posting of bond, and trial upon pain of fine and

imprisonment of individuals by a tribunal acting without

subject matter jurisdiction, the surely the Constitution of the

Untied States has suffered that “[s]light encroachment

[creating] new boundaries from which legions of power can

seek new territories to capture.” Reid v. Covert, 354 U.S. 1,

39, 1 L.Ed.2d 1458, 1176, 77 S.Ct. 1222 (1957).

The writ should be granted to affirm what had never

before been doubted: “that notice and hearing are preliminary

steps essential to the passing of an enforceable judgment, and

that they, together with a legally competent tribunal

having jurisdiction of the case, constitute basic elements

of the constitutional requirements of due process of law.

Powell v. Alabama, 287 U.S. 45, 68 (1932). Emphasis

added.

Dated as aamended in Denver, Colorado, October 20,

1992.

13

WHITE, PICKARD & HERREN, P.C.

Jeffrey N. Herren, #11374

5353 West Dartmouth Ave., Suite 500

Denver, Colorado 80227

Telephone (303) 989-6655

14

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

RONALD HENRY ZAHARIA, TERRY LEE MITTELSTAEDT and

all those similarly situated,

Petitioners,

VS.

THE MUNICIPAL COURT, CITY OF AURORA, COLORADO,

THE HONORABLE JOHN L. SPRINGER, one of its judges, and

the CITY OF AURORA, COLORADO, a Colorado Municipal

Corporation organized as a Home Rule Municipality under

Article XX of the Colorado Constitution,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

APPENDIX

WHITE, PICKARD & HERREN

Jeffrey N. Herren, #11374

5353 West Dartmouth Ave., Suite 500

Denver, Colorado 80227

Telephone (303) 989-6655

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 90-A-277

RONALD HENRY ZAHARIA, TERRY LEE MITTELSTAEDT, and

all those similarly situated.

Plaintiffs,

Vv.

THE MUNICIPAL COURT, CITY OF AURORA, COLORADO,

THE HONORABLE JOHN L. SPRINGER, one of its judges, and

THE CITY OF AURORA, COLORADO, a Colorado Municipal

Corporation organized as a Home Rule Municipality

under Article XX of the Colorado Constitution,

Defendants.

MEMORANDUM OPINION AND ORDER

ARRAJ, District Judge

This matter is before the court on the Cross-Motions

of Defendant City of Aurora (“Aurora”) and Plaintiffs Ronald

H. Zaharia (“Zaharia”)- and—Terry L. Mittelstaedt

(“Mittelstaedt”) for Summary Judgment under Rules 56(a),

(b), Fed. R. Civ. P., and on Aurora's Motion for Attorney

Fees under Rule 11, Fed. R. Civ. P. This court has

jurisdiction under 28 U.S.C. §§ 1331, 1343(a), 2201(a), 2202

(1988). On April 12, 1990, the court heard oral arguments on

the motion for attorney fees and reserved its ruling. On April

27, 1990, the court heard oral argument on the cross-motions

for summary judgment. After reviewing these arguments,

briefs and other materials submitted by counsel, the court is

now prepared to rule on each of these matters.

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BACKGROUND

The material facts of this case are undisputed. Aurora

is a home-rule municipality. Plaintiff Zaharia was a

defendant before the Municipal Court, City of Aurora,

Colorado (“Aurora Court”). He was arrested and, under

Summons number R-39570, was charged and convicted of

violating section 27-39 (assault) of the City Code of the City

of Aurora (“Code”); he has appealed this conviction. In

addition, he was arrested and, under summons number R-

39944, was charged with violations of Code sections 27-37

(assault), 27-38 (battery) and 27-39 (reckless

endangerment). Over Zaharia's objection to the Aurora

6Code section 27-37 provides:

An assault is an unlawful and intentional attempt

coupled with a present ability to commit a battery as defined in

section 27-38 upon the person of another, and it shall be

unlawful for any person to commit an assault in the city. Any

person who shall be convicted of, or plead guilty or no contest

to, a violation of this section shall, for each such offense, be

fined in a sum not more than nine hundred ninety-nine dollars

($999.00) or imprisoned not to exceed one hundred eighty days,

or both such fine and imprisonment.

Code section 27-38 provides:

Battery is the unprivileged and intentional use of force

or violence upon the person of another. Every battery shall be

deemed to include a violation of assault as defined in section 27-

37. It shall be unlawful to commit a battery in the city. Any

person who shall be convicted of, or plead guilty or no contest

to, a violation of this section shall, for each such offense, be

fined in a sum not more than nine hundred ninety-nine dollars

($999.00) or imprisoned not to exceed one hundred eighty days,

or both such fine and imprisonment.

Code section 27-39 provides:

It shall be unlawful to reckiessly engage in conduct

which creates a substantial risk of serious bodily injury to

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Court's exercise of subject matter jurisdiction, the complaint

was amended by the addition of three charges (false

imprisonment, disorderly conduct and unlawful display), and

the original charges were dismissed. Following a jury trial

on February 1, 1990, Zaharia was acquitted.

Plaintiff Mittelstaedt also was a defendant in the

Aurora Court. He was arrested and, under summons number

R-44013, was charged with assault and battery under Code

sections 27-37 and 27-38, respectively. Following a jury

trial, Mittelstaedt was acquitted on or about February 27,

1990.

On February 16, 1990, Plaintiffs filed this class action

lawsuit pursuant to 42 U.S.C. § 1983, claiming that because

the Code sections 27-37, 27-38 and 27-39 (“the Ordinances”’)

are pre-empted by state law, Plaintiffs were and/or are being

prosecuted under them in a court that lacks subject matter

jurisdiction. They assert that this constitutes a denial of due

process in violation of the Fourth and Fourteenth

Amendments to the federal constitution and seek an order

from this court:

voiding the actions against them under such void

ordinances, permanently restraining the AURORA

Defendants from attempting to enforce said void

ordinances, for their attorney fees pursuant to 42

U.S.C. 5 1988, and, as against the CITY OF

AURORA only, for damages to be determined by the

another person. Any person who shall be convicted of, or plead

guilty or no contest to, a violation of this section shall, for each

such offense, be fined a sum not more than nine hundred ninety-

nine dollars ($999.00) or imprisoned not to exceed one hundred

eighty days, or both such fine and imprisonment.

Quoted in Complaint § 8. The parties did not submit copies of the

Ordinances, but the language quoted in the Complaint is undisputed.

Answer ¢ 6.

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trier of fact, as compensation of liberty lost, time

spent and monies expended in [sic] in connection with

defending against a prosecution over which the

Subject court had no subject matter jurisdiction, said

prosecution amounting to a taking without due

process of law and a denial of equal protection under

the law.

Alternatively, they request that the court certify to the

Colorado Supreme Court the question whether the

Ordinances are pre-empted by state law if it concludes that

the law is not clearly established. Under Rules 23(b)(2), (3),

Fed. R. Civ. P., Zaharia and Mittelstaedt seek to represent a

class that “consists of all persons who within the two years

prior to the filing of this Complaint were or are charged with,

serving sentences upon a conviction of, or appearing before

the Defendant Courts on charges of violating [Code] sections

27-37, 27-38 and 27-39. ...” Complaint §§ 6-7. On March

29, 1990, on oral stipulation of counsel, this court granted

Plaintiffs’ motion to defer certification of the class under Rule

23(c), Fed. R. Civ. P., unul further order of the court.

On April 12, 1990, counsel to Zaharia, Mittelstaedt,

Aurora and the Aurora Court, as well as Defendant Hon. John

L. Springer (“Springer”) and Hon. Richard Kaufman, the

Presiding Judge of the Aurora Court, filed a stipulation,

which provides:

1. The Plaintiffs and Defendants THE

MUNICIPAL COURT, CITY OF AURORA,

COLORADO and THE HONORABLE JOHN L.

SPRINGER agree that said Defendants will be and

are hereby relieved from any obligation to actively

participate in the within action, including, but not

limited to, being relieved from the obligation of filing

an answer to the complaint; that such failure to

actively participate in the case shall not affect the

ultimate determination of the issues raised nor the

relief sought by the complaint; and that said

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Defendants will be bound by the orders of this Court,

including orders for injunctive relief.

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y With the exception of any action taken to

enforce any future order of the Court, Plaintiffs

release Defendants THE MUNICIPAL COURT,

CITY OF AURORA, COLORADO and THE

HONORABLE JOHN L. SPRINGER from any

claims they now have or may acquire in the future

pursuant to 42 U.S.C. § 1988, including claims for

attorney fees, and agree to indemnify and hold

harmless said Defendants from any claim of

contribution by any other defendant herein on any

claim pursuant to 42 U.S.C. § 1988, including claims

for attorney fees, raised within this action.

3. Defendants THE MUNICIPAL COURT,

CITY OF AURORA, COLORADO and THE

HONORABLE JOHN L. SPRINGER release and

indemnify and agree to hold harmless Plaintiffs and

their Counsel from any claims said Defendants may

have in connection with the commencement of this

action and the inclusion of said Defendants as parties

before this Honorable Court.

April 12, 1990 Stipulation §§ 1-3. By order dated April 12,

1990, the court granted this stipulation.

DISCUSSION

A. YOUNGER ABSTENTION

Before discussing the merits of Plaintiffs’ claims, the

court most address Aurora's assertion that this court snould

abstain under the doctrine of Younger v. Harris, 401 U.S. 37

(1971). Plaintiffs essentially claim that the doctrine of

abstention is inappropriate because the principles of comity

and federalism underlying it do not apply to the decisions of

municipal courts and that they do not have to exhaust state

remedies to bring their section 1983 claim.

To the extent that Zaharia seeks a declaration that his

battery conviction -- now on apPsal -- is void, this court is

obliged to abstain from passing ©) the merits of it under the

Younger doctrine. In Younger, the Supreme Court held that

absent prosecutorial bad faith, haassment or other unusual

circumstance, a federal court canot enjoin a state criminal

prosecution on the ground that the statute on which the

prosecution is based is unconstitutipnal. See, Younger, supra,

401 U.S. at 54. The Court based its holding on two general

rationales. The first was the “yasic doctrine of equity

jurisprudence that courts of €q)ity should not act, and

particularly should not act to restriin a criminal prosecution,

when the moving party has an adsquate remedy at law and

will not suffer irreparable injury i genied equitable relief.”

Id. at 43-44. The second was:

an even more vital consideration, the notion of

comity,’ that is, a proper respect for state functions, a

recognition of the fact that the entire country is made

up of a Union of separate state governments, and a

continuance of the bejef that the National

Government will fare bes if the States and their

institutions are left free | perform their separate

functions in their separate Ways.

Id. at 44. This policy of federal restraint “is founded on the

premise that ordinarily a pending ‘tate prosecution provides

the accused a fair and sufficient sportunity for vindication

of federal constitutional rights.” Ky oler v. Helfant, 421 U.S.

117, 124 (1975).

Although Zaharia does not ‘eek to enjoin prosecution

in the trial court, the principles of Younger still apply. In

Huffman v. Pursue, Ltd., 420 U.S. 599 (1975), the Supreme

Court addressed the question whet,., 4 federal court should

abstain from hearing the merits Of petitioner's section 1983

action which sought injunctive and declaratory relief

following a state trial court judgnans of liability under an

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allegedly unconstitutional “quasi-criminal” nuisance statute.

The Court held that a federal court should abstain in such a

situation. It explained:

Virtually all of the evils at which Younger is

directed would inhere in federal intervention prior to

completion of state appellate proceedings, just as

surely as they would if such intervention occurred at

or before trial. Intervention at the later stage is if

anything more highly duplicative, since an entire trial

has already taken place, and it is also a direct

aspersion on the capabilities and good faith of state

appellate courts. Nor, in these state-initiated nuisance

proceedings, is federal intervention at the appellate

stage any the less a disruption of the State's efforts to

protect interests which it deems important. Indeed, it

is likely to be even more disruptive and offensive

because the State has already won a nisi prius

determination that its valid policies are being violated

in a fashion which justifies judicial abatement.

Federal post-trial intervention,

in a fashion designed to annul the results of a state

trial, also deprives the States of a function which quite

legitimately is left to them, that of overseeing trial

court dispositions of constitutional issues which arise

in civil litigation over which they have no

jurisdiction. We think this consideration to be of some

importance because it is typically a judicial system's

appellate courts which are by their nature a litigant's

most appropriate forum for the resolution of

constitutional contentions- Especially is this true

when, as here, the constitutional issue involves a

Statute which is capable of judicial narrowing. In

short, we do not believe that a State's judicial system

would be fairly accorded the opportunity to resolve

federal issues arising in its courts if a federal district

court were permitted to substitute itself for the State's

appellate courts. We therefore hold that Younger

TE ESET ne aE ane Thi T i

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Id. at 608-09 (1975) (footnotes omitted and emphasis added).

See also :7A C. Wright, A. Miller & E. Cooper, FED.

PRACTICE & PROCEDURE, § 4253, at 231 (1988) (“If a state

proceeding was pending at a time that invokes the Younger

rules, those rules remain applicable through the completion

of all state appellate remedies.”). Municipal courts are part

of the state court system and interference with appeals from

their decisions implicates the same concerns that interference

with appeals from state court decisions does. I conclude,

therefore, that the principles enunciated in Huffman apply to

appeals of criminal convictions rendered in municipal courts

just as surely as they apply to appeals of “quasi-criminal”

judgments rendered in state civil courts. Thus, Plaintiffs’ first

argument against abstention is without merit.

As to Plaintiffs’ second argument, it is well-settled

that in a section 1983 action brought in federal court, “the

federal remedy is supplementary to the state remedy, and the

latter need not be first sought and refused before the federal

one is invoked.” Monroe v. Pape, 365 U.S. 167, 183 (1961).

See, Spence v. Latting, 512 F.2d 93, 98 (10th Cir.), cert.

denied, 423 U.S. 896 (1975). In Huffman, however, the

Court addressed the question whether this holding undercut

its pnor holding in Monroe:

By requiring exhaustion of state appellate

remedies for the purposes of applying Younger, we in

no way undermine Monroe v. Pape, 365 U.S. 167, 81

S. Ct. 473, 5 L. Ed.2d 492 (1961). There we held that

one seeking redress under 42 U.S.C. § 1983 for a

deprivation of federal rights need not first initiate

State proceedings based on related state causes of

action. 365 U.S., at 183, 81 S.Ct., at 482. Monroe v.

Pape had nothing to do with the problem presently

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420 U.S. at 609 n. 21 (emphasis added). Since the issue

before me is similar to that which was before the Court in

Huffman, abstention is proper in this case. Plaintiffs’ second

argument against abstention is therefore without ment.

None of the exceptions to the application of the

Younger doctrine apply here. See, Younger, supra, 401 U.S.

at 54. Consequently, this court must abstain from passing

upon that portion of Plaintiff Zaharia's claim which seeks to

invalidate his battery conviction now on appeal.’

B. MERITS OF THE REMAINING PORTION OF

ZAHARIA'S AND MITTELSTAEDT'S CLAIM

Plaintiffs and Defendant Aurora assert that they are

entitled to judgment under the law as to the remaining parts

of Plaintiffs' claim under 42 U.S.C. § 1983 (1982).8 To

prevail on his claims, a plaintiff must prove two elements,

first, that some person has deprived him of a federal right

7 Aurora cites Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987}, in

support of its position. In that case, a plurality of the court concluded that

under Younger and its progeny, the federal district court should have

abstained from deciding whether Texaco was entitled to injunctive relief

under section 1983 against Pennzoil in the latter's attempt to execute a

judgment after winning a civil jury verdict in a Texas trial court. .Since

this was not a majority opinion, however, I believe that other cases the

Court has decided provide surer footing in reaching a decision in this

case.

8 Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State... subjects, or causes to be

subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper proceeding

for recress

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and, second, that the person who deprived him of that right

acted under color of state law. Gomez v. Toledo, 446 U.S.

635, 640 (1980); Monroe, supra, 365 U.S. at 171. On

Summary judgment, the burden is on the movant to prove that

he is entitled to judgment beyond a reasonable doubt.

Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988), citing

Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir. 1980).

There is no dispute that Aurora acted under color of

State law in prosecuting Zaharia and Mittelstaedt under the

Ordinances. The issue here is whether Aurora deprived them

of rights under the federal constitution. Since Plaintiffs do

not contend that the Ordinances themselves violate the

federal constitution, resolution of this issue involves a two-

part inquiry: whether. as Plaintiffs maintain, the Ordinances

are pre-empted under state law, and, if so, whether

prosecutions under their authority that resulted in acquittal in

a court lacking subject matter jurisdiction give rise to a

violation of either the Fourth or Fourteenth Amendment

which is actionable under section 1983.

Because it is a home-rule city, Aurora maintains that

it has the authority under the Colorado Constitution and state

Statute to enact ordinances and enforce them by providing for

penalties for violations. It asserts that the Ordinances at issue

here superseded state law and that the prosecutions of

Plaintiffs pursuant to them were lawful. In response,

Plaintiffs contend that under the court's ruling in Aurora v.

Green, 86-CR-20 (D. Colo. Apr. 28, 1986), the Ordinances

are void and unenforceable and that the Aurora Court cannot

exercise jurisdiction over matters arising from alleged

violations of such ordinances. They also assert that the

Aurora Court lacks subject matter jurisdiction because the

Ordinances are void as overbroad and ultra vires under

Article XX, section 6 of the Colorado Constitution.

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Plaintiffs’ reliance on Aurora v. Green is misplaced.

In Green, Aurora charged an U.S. Postal Service employee

with violations of Code sections 27-38 (battery) and 27-40

(false imprisonment), and the case was removed to federal

district court because the defendant was accused of these

violations as an officer of the U.S. Government acting under

the color of office. Defendant moved to dismiss. The district

court, relying on state law, granted the defendant's motion

because, it held, the penalty provisions were unlawfully

excessive. Thus, the court did not reach the issue presented

here whether prosecution under such ordinances gave rise to

section 1983 liability.

Even if the Aurora Court lacked subject matter

jurisdiction because the municipal ordinances under which

Zaharia and Mittelstaedt were prosecuted were pre-empted

under state law—an issue this court need not and does not

decide—Plaintiffs have not demonstrated that past

prosecutions under the Ordinances that resulted in acquittal

are actionable under section 1983 as violations of the Fourth

and Fourteenth Amendments to the federal constitution.

They rely upon a passage in Powell v. Alabama, 287 U.S. 45,

68 (1932): .

It never has been doubted by this court, or any

other so far as we know, that notice and hearing are

preliminary steps essential to the passing of an

enforceable judgment, and that they, together with a

legally competent tribunal having jurisdiction of the

case, constitute basic elements of the constitutional

requirement of due process of law.

Plaintiffs admit and the court agrees that this language

was dicta. The sole issue before the court in Powell was

whether the trial court's failure to appoint counsel deprived

appellants of due process and equal protection under the

Fourteenth Amendment. Plaintiffs have not cited — and the

court has not found — authority to support their position in

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this case. I conclude that such past prosecutions, even if

based upon municipal ordinances that are pre-empted by state

law, do not rise to the level of constitutional dignity required

for a section 1983 liability.

The April 12, 1990 Stipulation, inter alia, relieved

Defendants Springer and the Aurora Court from active

participation in this lawsuit and provided that they would be

bound by the orders of this court. Since the court is entering

summary judgment in favor of Aurora, it will dismiss the

complaint with prejudice as against the other Defendants

under the same rationale. In addition, because it is

unnecessary to reach the question whether the Ordinances are

pre-empted by state law to resolve the matter before me,

Plaintiffs’ request that the court certify the question to the

Colorado Supreme Court under Rule 21.1, Colo. App. R., is

denied. Because the court grants summary judgment against

Plaintiffs, Plaintiffs’ request that the court certify this case as

a class action under Rule 23, Fed. R. Civ. P., is moot and is

‘therefore denied.

Accordingly,

IT IS ORDERED THAT:

1. Defendant Aurora's Motion for Summary

Judgment as to Plaintiffs' claim be, and hereby

is, GRANTED; therefore, as to Defendant

Aurora, it is ordered that the Complaint be,

and hereby is, DISMISSED WITH

PREJUDICE;

2. Plaintiffs’ Motion for Summary Judgment as

to their claim be, and hereby, is DENIED;

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Se

a Plaintiffs’ request that this case be certified as

a class action under Rule 23, Fed. R. Civ. P.,

is moot and is therefore DENIED;

4. Plaintiffs’ request that the court certify to the

Colorado Supreme Court the question whether

the Ordinances are pre-empted by state law be,

and hereby is, DENIED;

> Inasmuch as the court grants summary

judgment in favor of Aurora, Plaintiffs’

Complaint against Defendants Springer and

Aurora Court be, and hereby is, DISMISSED

WITH PREJUDICE;

6. Costs shall be assessed to Plaintiffs upon

Defendant Aurora's filing of a bill of costs as

provided by law. Under 42 U.S.C. 5 1988, the

court, exercising its discretion, will not award

attorney's fees as part of Defendant's costs;

A Defendants’ Motion for attorney fees pursuant

to Rule 11, Fed. R. Civ. P., filed March 30,

1990, on which a ruling was reserved, be, and

hereby is, DENIED;

8. The Clerk enter final judgment in this civil

action in accordance with this Memorandum

Opinion and Order.

DATED at Denver Colorado this 17th day of July,

1990.

BY THE COURT:

s/ Alfred A. Arraj

ALFRED A. ARRAJ, Judge

United States District Court

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 90-A-277

RONALD HENRY ZAHARIA, TERRY LEE MITTELSTAEDT, and

all those similarly situated,

Plaintiffs,

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THE MUNICIPAL COURT, CITY OF AURORA, COLORADO,

THE HONORABLE JOHN L. SPRINGER, one of its judges, and

THE CITY OF AURORA, COLORADO, a Colorado Municipal

Corporation organized as a Home Rule Municipality

under Article XX of the Colorado Constitution,

Defendants.

JUDGMENT

Pursuant to and in accordance with the Memorandum

Opinion and Order signed by Judge Alfred A. Arraj and filed

on July 17, 1990, it is

ORDERED AS FOLLOWS:

a Defendant Aurora's Motion for Summary

Judgment is Granted and the complaint and action be, and the

same hereby are, dismissed as to Defendant City of Aurora,

Colorado.

r 3 Plaintiffs’ Motion for Summary Judgment is

Denied.

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I Plaintiffs’ request that this case be certified as

a class action under Rule 23, Fed. R. Civ. P., is moot and is

therefore Denied.

4. Plaintiffs’ request that the Court certify to the

Colorado Supreme Court the question whether the

Ordinances are pre-empted by state law be, and hereby is,

Denied.

- 3 Inasmuch as Aurora's Motion for Summary

Judgment is granted, Plaintiffs’ complaint against Defendants

The Honorable John L. Springer and The Municipal Court,

City of Aurora, Colorado, is dismissed with prejudice.

6. Costs shall be assessed to Plaintiffs upon

Defendant Aurora's filing a bill of Costs with the Clerk of

this court within 10 days from the date of this Judgment.

Under 42 U.S.C. § 1988, the Court, exercising its discretion,

will not award attorney's fees as part of Defendant's costs.

7 Defendants' Motion for attorney fees pursuant

to Rule 11, Fed. R. Civ. P., filed March 30, 1990, on which a

ruling was reserved, be, and the same hereby is, Denied.

DATED at Denver, Colorado, this 18th day of July,

1990.

For the Court:

JAMES R. MANSPEAKER,

Clerk

APPROVED:

s/ Alfred A. Arraj

ALFRED A. ARRAJ, Judge

United States District Court

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soi eee naa

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RONALD HENRY ZAHARIA, TERRY

LEE MITTELSTAEDT and all those

similarly situated,

Plaintiff-Appellants, | No. 90-1232

V. (D.C.No.90-A-277)

(D. Colo.)

THE MUNICIPAL COURT, CITY OF

AURORA, COLORADO, TH E

HONORABLE JOHN L. SPRINGER, one

of its judges, and the CITY OF

AURORA, COLORADO, a Colorado

Municipal Corporation organized as a

Home Rule Municipality under Article

XX of the Colorado Constitution,

ORDER AND JUDGMENT*

Before SEYMOUR, TACHA, Circuit Judges, and

CHRISTENSEN, District Judge.**

Plaintiff Ronald Zaharia appeals the district court's

grant of summary judgment in favor of defendant City of

Aurora. We have carefully reviewed the record and have

fully considered the arguments of plaintiff that he raised

‘i This order and judgment has no precedential value and shall not

be cited, or used by any court within the Tenth Circuit, except for

purposes of establishing the doctrines of the law of the case, res judicata,

or collateral estoppel. 10th Cir. R. 36.3.

i Honorable A. Sherman Christensen, Senior District Judge,

United States District Court for the District of Utah, sitting by

designation.

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——

below. We have not considered those arguments raised for

the first time on appeal. We are not persuaded that the

district court erred in granting summary judgment for the

City.

Accordingly, the judgment of the district court is

AFFIRMED.

Entered for the Court

Stephanie K. Seymour

Circuit Judge

Judgment filed March 5, 1992

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RONALD HENRY ZAHARIA, TERRY

LEE MITTELSTAEDT and all those

Similarly Situated,

Plainuiff-Appellants, | 90-1232

¥.

THE MUNICIPAL COURT, CITY OF

AURORA, COLORADO, TH E

HONORABLE JOHN L. SPRINGER, one

of its judges, and the CITY OF

AURORA, COLORADO, a Colorado

Municipal Corporation organized as a

Home Rule Municipality under Article

XX of the Colorado Constitution,

Defendant-Appellees.

ORDER

Entered July 1, 1992

Before MCKAY, HOLLOWAY, LOGAN, SEYMOUR,

MOORE, ANDERSON, TACHA, BALDOCK, BRORBY,

EBEL, Circuit Judges, and CHRISTENSEN’, District Judge.

This matter comes on for consideration of appellants’

petition for rehearing and suggestion for rehearing en banc.

Upon consideration whereof, the petition for

rehearing is denied by the panel that rendered the decision.

: Honorable A. Sherman Christensen, Senior District Judge,

United States District Court for the District of Utah, sitting by

designation.

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In accordance with Rule 35(b), Federal Rules of

Appellate Procedure, the suggestion for rehearing en banc

was transmitted to all of the judges of the court who are in

regular active service. No member of the panel and no judge

in regular active service on the court having requested that

the court be polled on rehearing en banc, Rule 35, Federal

Rules of Appellate Procedure, the suggestion for rehearing en

banc is denied.

Entered for the Court

Robert L. Hoecker, Clerk

By: atrick Fish

PATRICK FISHER

Chief Deputy Clerk

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