Petition for Writ of Certiorari — Hopewell v. Dunker

95-440

IN THE

SUPREME COURT OF TRE UNITED STATES

OCTOBER TERM, 1995

RICHARD HOPEWELL,

Petitioner,

Vv.

-WILLIAM DUNKER, JANET BREKKE, JOHN DCE,

JANE DOE, JOHN ROE, JANE ROE, MIFE MOE,

individually and in their capacities

as employees of the City of Sioux Falls,

CITY OF SIOUX FALLS, MIDCONTINENT BROAD-

CASTING CORPORATION dba KELOLAND NEWS,

STEVE HEMMINGSEN, JESSICA ARMSTRONG AND

VARIOUS OTHER UNIDENTIFIED PERSONS, in-

dividually and in their capacities as

employees and agents of Midcontinent

Broadcasting Corporation,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

CORRECTED PETITION. FOR WRIT OF CERTIORARI

Richard Hopewell

Petitioner pro se.

423 South Phillips Avenue

Sioux Falls, South Dakota 57102

[605]334-0982

i

QUESTIONS PRESENTED

1. DID TRIAL COURT'S DENIAL OF PETITIONER'S

MOTION FOR LEAVE TO FILE HIS THIRD AMENDED

COMPLAINT DEPRIVE PLAINTIFF OF DUE PROCESS

[FRCvP 15(a)] OF LAW GUARANTEED PETITIONER

BY FOURTEENTH AMENDMENT?

2. DID TRIAL COURT'S DENIAL OF PETITIONER'S MO-

TION FOR CONTINUANCE OF APRIL 18, 1994 HEAR-

ING ON RESPONDENTS’ MOTIONS FOR SUMMARY

JUDGMENT DEPRIVE PETITIONER OF HIS RIGHT TO

DUE PROCESS [FRCvP 56(f)] OF LAW GUARANTEED

PETITIONER BY THE FOURTEENTH AMENDMENT?

3. WITH NO STATUTORY AUTHORITY, DID CITY HAVE

RIGHT UNDER COLOR OF ITS POLICE POWER

TO KEEP AND DISSEMINATE REPORT ON PETITION-

ER'S CONDUCT FOR WHICH HE HAD NOT BEEN CHAR-

GED WITH A CRIMINAL OFFENSE AND WHEREIN HE

HAD BEEN DETAINED FOR A REASON OTHER THAN

AN ARREST FOR A CRIMINAL OFFENSE?

4. DID GOVERNMENT'S INTENTIONAL RELEASE OF CON-

FIDENTIAL RECORD ABOUT PETITIONER TO PUBLIC

WHERE PROHIBITED BY STATE STATUTES INVADE

PETITIONER'S RIGHT TO PRIVACY GUARANTEED

BY FOURTH AMENDMENT IN VIOLATION OF EQUAL

PROTECTION CLAUSE OF FOURTEENTH AMENDMENT?

5. WHERE GENUINE ISSUE OF MATERIAL FACT HEREIN

REMAINS TO BE RESOLVED BY JURY, DID TRIAL

COURT ERR IN ENTERING SUMMARY JUDGMENT FOR

RESPONDENTS?

6. DID DUNKER AFFIDAVIT WORK FRAUD ON STATE

TRIAL COURT?

7. DOES NEWLY DISCOVERED EVIDENCE THAT RESPON-

DENT BREKKE'S SUBMISSION OF FALSE POLICE RE-

CORDS ABOUT PETITIONER TO STATE TRIAL COURT

WORK FRAUD ON STATE COURT AND, FOR WANT OF

DISCLOSURE HEREIN RY RESPONDENTS BREKKE AND.

CITY OF SIOUX FALLS, ON U.S. DISTRICT COURT

AND THE U.S. COURT OF APPEALS HEREIN?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES iii

REPORTED LOWER COURT OPINIONS 1

JURISDICTION |

CONSTITUTIONAL PROVISIONS

AND STATUTES 1

STATEMENT OF CASE 4

ARGUMENT 9

APPENDIXES :

A. Opinion by U.S. Circuit Court

of Appeals for Eighth Circuit 32

B. Onder by U.S. .District Court

of South Dakota 37

C. Order by U.S. District Jourt

of South Dakota 39,

D. Order by U.S. Circuit Court

of Appeals for Eighth Circuit 40

iii

TABLE OF AUTHORITIES

Pages

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) 13

Berger v. State of New York,

8..1 G367) 21

Borunda v. Richmond,

855 F.2d 1384 (CA9 1988) 29 , 30

Britton v. Rogers,

S31 F-2d-372 (CAS 1980) 26

Corbitt v. Anderson,

778 F.2d 1471 (CAIO 1985) 16

FBI v. Abramson,

456 U.s. 615 (1982) 24

Glicker v. Mich. Liq. Control

Comm'n, 160 F.2d 96 (CA6 194” 24

I.N.S. v. Delgado,

466 U.S. 210 aT 5B) 21

Jones v. U.S.,

357 U.S. 493 (1958) 22

Middle Atl‘'c Uti. Co. v. S.M.W. Dev.

Corp., 392. F.2d 380 (CA NY 1968) 10

Oaark Air Lines v. Air Line Pilot

Ass'n, 577 F.Supp. 487 (DC Mo. 1983) 28

Paul v. Davis,

G24 u.S. 693 (1976) 30

Personnel Adm'r of Massachusetts

v. Feeney, 442 U.S. 256 (1979 26,30

Reynolds v. Sims

377 U.S~ 5 533-c1 904), 25,30

iv

TABLE OF AUTFORITIES (Cont.)

Pages

Roterman v. U.S. Steel Corp.,

G72 F.2d 1139 (CA8 1373) 27

Sawyer v. Sigler,

.Supp. 250 (DC Nev. 1970) 26

Shock v. Tester,

408 F.2d 852 (CAS 1969) 24

State of Delaware v. Prouse,

440 U.S. 648 (1979) 21

Strassmann v. U.S. Dept. of Justice,

792 F.2d 1276 (1986) 24

U.S. v. Allen,

578 F.2d 236 (CA9 1978) 27

U.S. v. Burch,

Z32 F.Supp. 961 (DC Del. 1977) 22,23

Utz v. Cullinane,

520 F.2d 467 (CA DC 1975) 17,19,30

Warden, Maryland Penitentiary v.

Hayden, U.S. 22

Wilmar Poultry Co. v. Morton-Norwich

Products, Inc., 520 F. 75) 13

Wisconsin v. Constantineau,

Z00 U.S. 433 C1971) 20,30

5 U.S.C. §552(b) (7) (C) 2,10,24

42 U.S.C. §1983 2,9,13,17,24, 26,29, 30

FRCvP 15(a) 3,9

FRCvP 56(c) 3,27

FRCvP 56(f£) pet eS

Vv

TABLE OF AUTHORITIES (Cont. )

Pages

28 U.S.C. §1254(1) 1

28 U.S.C. §1291 9

28 U.S.C. §1343 9

SDCL 1-27-1 ace

SDCL 1-27-3 3,15,16,20,21,23,25, 26,28

SDCL 23-5-1 2,14

SDCL 23-5-1LOQJ 3,15,16,21

SDCL 23-5-11 §.16,20.21,23.25,26,2¢6

United States Constitution

Fourth Amendment

Fourteenth .Amendment

Due Process Clause

Equal Protection Clause

1,14,21,22,24

2,14,24

yp > Be

REPORTED LOWER COURT OPINIONS

Neither the Order of Dismissal (Appendix

B) and Summary Judgment for Respondents made

and entered by the Southern Division of the

U.S. District Court of South Dakota nor the

Opinion (Appendix A) and Judgment in affir-

mance thereof by the U.S. Circuit Court of Ap-

peals for the Eighth Circuit are published in

an official reporter.

JURISDICTION

The Judgment and Opinion (Appendix A)

herein by Petitioner sought to be reviewed by

this Court was made and entered by the U.S.

Court of Appeals for the Eighth Circuit on

June 5, 1995. Jurisdiction of this Court is

by the Petitioner invoked pursuant to 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES

The Fourth Amendment in material part

provides:

“The right of the people to be secure

in their persons, .. . papers and ef-

fects, against unreasonable searches

and seizures, shall not be violated."

Section 1 of the Fourteenth Amendment in

1

in material part provides:

"... . [NJor shall any state deprive

any person of life, liberty or prop-

erty, without due process of law,

nor deny to any person within its

jurisdiction the equal protection

of the laws.”

Relative to the Federal Freedom of Informa-

tion ‘Act, 5°U.S.C. §552(b)(7)(C) provides:

". . . This section does not apply to

matters that are .. . investigatory

records compiled for law enforcement

purposes, but .. . constitute an un-

warranted invasion of personal priva-

yr aie 3

42 U.S.C. §1983 in material part provides:

“Every person who, under color of “any ~

statute, ordinance, .. . custom and

usage, of any State .. ., subjects

. any citizen . . . within the

jurisdiction thereof to the deprivat-

ion of any rights secured by the Con-

stitution and laws, shall be liable to

the party injured in an action at law.

SDCL 23-5-1 in material part provides:

"The attorney general shall procure and

file for record . . . information as

may be pertinent of all persons who

may hereafter be taken into custody

for offenses other than those arising

solely out of the violation of the

fish, game, conservation, or traffic

laws of this state with the exception

of those persons charged with driving

a motor vehicle while under the influ-

ence of alcoholic beverages, and also

of all criminals wheresoever the same

may be procured . rs

SDCL 1-27-1 provides:

"In every case where the keeping of a

record, or the preservation of a docu-

ment or other instrument is required

of an officer or public servant under

any statute of this state, such record,

document, or other instrument shall be

kept available and open to inspection

by any person during the business hours

of the office or place where the same

is kept."

SDCL 1-27-3 provides:

"Section 1-27-1 shall not apply to such

records as are specifically enjoined

to be held confidential or secret by

the laws requiring them to be so kept."

SDCL 23-5-10(1) provides:

"'Confidential criminal justice informa-

tion,' criminal identification informa-

tion compiled pursuant to chapter 23-5,

criminal intelligence information,

criminal investigative information,

criminal statistics information made

confidential pursuant to § 23-6-14,

and criminal justice information other-

wise made confidential by law.”

SDCL 23-5-11 provides:

"Section 1-27-1 does not_apply to confi-

dential criminal justice information."

FRCvP 15(a) in material part provides:

". , . Otherwise a party may amend the

party's pheeting only by leave of the

court .. .; and leave shall be freely

given when justice so requires."

FRCvP 56(c) in material part provides:

". . . The judgment sought shall be ren-

3

dered forthwith if the pleadings, dep-

ositions, anwers to interrogatories,

and admissions on file, together with

the affidavits, if any, show that

there is no genuine issue as to any

material fact and that the moving par-

ty is entitled to judgment as a mat-

ter of law. 7

FRCvP 56(f£) provides: .

"Should it appear from the affidavits

of a party opposing the motion that

the whe cannot for reasons stated

present by affidavit facts essential

to justify the party's opposition,

the court may refuse the application

for judgment or may order a continu-

ance to permit affidavits to be ob-

tained or depositions to be taken or

discovery to be had or may make such

other order as is just."

STATEMENT OF CASE

On May 28, 1978, Petitioner was detained

by the City of Sioux Falls Police Department

(SFPD) for an of record reason other than an

arrest for a criminal offense. While the

SFPD has no lawful authority to collect and

retain in its record any data on Petitioner

other than criminal offenses for which Petit-

iener had been arrested, the SFPD kept a mi-

crofice record of a SFPD May 28, 1978 noncrim-

inal “incident", vis-a-vis criminal "offense",

report which contained false and highly defam-

4

atory information about Petitioner.

On October 26, 1990, Respondent John Doe,

as an employee of Respondent City of Sioux

Falls, read, without the knowledge and consent

of Petitioner, false and defamatory contents

of said confidential report over the tele-

phone to television news reporter Respondent

Armstrong, -from-which information Respondent

Armstrong later that day at 6:00 p.m. in er-

ror broadcast to the public that, as a result

of the aforesaid incident, Petitioner had been

charged and arrested for a heinous felony to

the end, in conspiracy with Defendants John

Doe and City of Sioux Falls, of so stigmatiz-

ing Petitioner's community reputation for bad

character and immoral criminal behavior as to

immediately foreclose Petitioner's opportunity

to be employed as a state circuit court judge

by majority vote of the Minnehaha County,

South Dakota electorate in the November 6,

1990 general election.

In advance of her foregoing broadcast,

Respondent Armstrong in conspiracy also sought

and received from Respondents John Doe and

5

Jane Doe, presumably an employee of Respon-

dent City of Sioux Falls, false and defama-

tory information that Petitioner had been

committed to the state mental hospital, which

Respondent Armstrong therein in error broad-

cast to the public.

Derived from the foregoing false and defam-

atory information provided Respondent Arm-

strong by Respondents John Doe, Jane Doe and

John Roe, Respondent Hemmingsen on October 26,

1990 at 10:00 p.m. in error broadcast that Pe-

titioner had allegedly been arrested for a

heinous felony and turned up naked at a

church.

For foregoing false defamations of Peti-

tioner by Respondents Midcontinent Broadcast-

ing Corporation, Hemmingsen and Armstrong,

Plaintiff commenced an action against them in

libel and slander in state court in November

of 1990.

In a spurious attempt to circumvent the

confidential status of the aforesaid May 28,

1978 SFPD incident report and therewith ex

post facto change the noncriminal disposition

of said incident into an arrest for a crimi-

nal offense, Respondent Brekke, in her capac-

ity as legal advisor to the Sioux Falls Pol-

ice Department, advised police officer Re-

spondent Dunker to collaborate with a parale-

gal of the law firm representing Respondents

Midcontinent Broadcasting, Hemmingsen and

Armstrong in production of an affidavit where-

in, from his review of the May 28, 1978 inci-

dent report, Respondent Dunker imputes that

Plaintiff committed a heinous felony; which

libelous affidavit was, over meritorious ob-

jection by Petitioner, offered by said Respon-

dents into evidence in the state defamation

action to spuriously establish that Petition-

er had been “arrested” for a heinous felony

as broadcast by Respondents Armstrong and

Hemmingsen.

On August 26, 1993, Respondent Brekke,

without notice to Petitioner, under color of

law adduced into the state court record a

SFPD computer printout and a Record From

Sioux Falls Police Department respectively at-

tached as Exhibits 2 and 3 to Petitioner's

August 3, 1994 Motion herein for Rule 2 Sus-

pension and Remand by the U.S. Court of Appe-

als for the Eighth Circuit to the South Da-

kota U.S. District Court to entertain Peftiti-

oner's Motion to Vacate Summary Judgment Pur-

suant to FRCvP 60(b)(2)(3); which Motion for

Remand the U.S. Court of Appeals for the

Eighth Circuit denied by Order (Appendix DB).

In that tt is herein undisputed that the

SFPD computer printout contained the false en-

try’ that Petitioner had been arrested for a

heinous felony on May 28, 1978 and the Record

from Sioux Falls Police Department contained

false entries that Petitioner had been "char-

ged" with a heinous felony on May 28, 1978

and, in disposition of an unrelated misde-

meanor offense, taken to the state mental hos-

pital; such false police records worked fraud

on the state trial court; the nondisclosure

of which actions by Respondent Brekke, being

material facts required for Petitioner to lit-

fraud

igate his claims herein, worked/on the U.S.

District Court in its dismissal of Plaintiff's

§1983 claims herein and worked further fraud

8

on the U.S. Court of Appeals in its affir-

mance of the U.S. District Court's summary

judgment in favor of Respondents.

The U.S. District Court's jurisdiction

herein bases on 28 U.S.C. §1343 and 42 U.S.C.

§1983. The U.S. Court of Appeals appellate

jurisdiction bases on 28 U.S.C. §1291.

' [Numbers in parentheses are

pages in lower court record]

ARGUMENT

1. TRIAL COURT'S DENIAL OF PETITIONER'S MOT-

ION FOR LEAVE TO FILE HIS THIRD AMENDED

COMPLAINT DEPRIVED PETITIONER OF DUE PRO-

CESS OF LAW [{FRCvP 15(a)] GUARANTEED BY

FOURTEENTH AMENDMENT

FRCvP 15(a) provides that leave for a

party to file an amended complaint "shall be

freely given when justice so requires." As,

with Allegation XIV of his Third Amended Com-

plaint (20) in amendment of Allegation 28-in

his Second Amended Complaint (16), Petitioner

seeks 42 U.S.C. §1983 redress for Respondents'

violations of Petitioner's right to privacy of

state law enforcement investigative records

not resulting in charge and arrest for a crin-

inal offense in counterpart to right of those

investigated by federal law enforcement agen-

cies to, by operation of 5 U.S.C. §552(b) (7)

(C), not have their privacy invaded and here-

in creative of a similar right to privacy

guaranteed by the Fourth Amendment so as to

herein exhaust all of Petitioner's constitu-

tional rights on the merits herein beyond the

merits of the herein complained of violation

of due process and equal protection clauses

of the Fourteenth Amendment, justice herein

required trial court's grant of Petitioner's

Motion for Leave for Leave to File Third Amen-

ded Complaint (20). Middle Atlantic Utili-

ties Co. v. S.M,.W Development Corp., 392 F.2d

380 (CA NY 1968).

Contrary to the U.S. District Court's

finding in its February 24, 1994 order deny-

ing Petitioner's Motion for Leave to File

Third Amended Complaint that Petitioner fail-

ed "to ‘file a copy of the proposed amended

pleadings with the motion"’; and further con-

trary to the U.S. Court of Appeal's finding

and holding in. its June 5, 1995 Opinion (Ap-

pendix A) that:

10

"[A]s Hopewell failed to submit his pro-

posed amended complaint with his motion

to amend, the district court did not a-

buse its discretion in denying Hope-

well's motion for leave to file his

third amended complaint";

the record (20) clearly indicates that the Pe-

titioner motioned the U.S. District:

". . . Court for an order granting Plain-

tiff leave to file his annexed and here-

with filed and served third amended com-

plaint in amendment of his complaint,

first amended complaint and second amen-

ded complaint."

2. TRIAL COURT'S DENIAL OF PETITIONER'S MOT-

ION FOR CONTINUANCE OF 4-18-94 ‘HEARING

ON RESPONDENTS' MOTIONS FOR SUMMARY JUDG-

MENT DEPRIVED PETITIONER OF DUE PROCESS

OF LAW [FRCvP 56(f£)] GUARANTEED PETITION-

ER BY THE FOURTEENTH AMENDMENT

To be noted in Petitioner's Affidavit in

opposition to Motions for Summary Judgment

(37), evidence essential for Petitioner to

herein opposed Respondents’ Motions for Sum-

mary Judgment (22,25) is in the exclusive pos-

session of the Respondents, has been withheld

from Petitioner in state court proceedings and

Petitioner must be given the opportunity to

obtain facts essential to any further opposit-

ion to the Motions for Summary Judgment under

FRCvP 56(f).

ll

FRCvP 56(£) provides:

"Should it appear from the affidavits of

a party opposing the motion that the

party cannot for reasons stated pre-

sent by affidavit facts essential to

justify the party's opposition, the

court may refuse the application for

judgment or may order a continuance to

permit affidavits to be obtained or de-

positions to be taken or discovery to

be had or may make such other order as

‘ie just .~

As Petititioner's Affidavit in Opposition

to Motions for Summary Judgment (37) without

question demonstrates why, due to the prior

refusal of Respondents Midcontinent Broadcas-

ting, Hemmingsen and Armstrong in state court

proceedings to disclose the identification of

Respondents John Doe, Jane Doe and John Roe

so as to therewith preclude further discovery

from the unidentified Respondents of facts

which are material and essential to Petition-

er's litigation of both the state court act-

jon and the federal court action herein, Pe-

titioner could not at the April 18, 1994 hear-

ing on Defendants" Motions for Summary Judg-

ment (23,25) by affidavit present to the tri-

al court material facts essential in Petition-

er's opposition to Respondents’ said Motions

12

for Summary Judgment; the trial court should

have refused Respondents' application for sum-

mary judgment and therewith ordered a continu-

ance of the April 18, 1994 hearing to thereaf-

ter permit Petitioner's theretofore altogeth-

er denied reasonable time and opportunity to

conduct discovery by interrogatories, requests

for admissions, requests for production of

documents, depositions and affidavits so that

the trial court could thereafter make and en-

ter such other order than to grant Respon- -

dents' Motions for Summary Judgment as would

thereafter be just on the yet to be and there-

tofore adjudicated facts and merits of Petiti-

oner's 42 U.S.C. §1983 claims herein against

Respondents. Willmar Poultry Co. v. Morton-

Norwich Products, Inc., 520 F.2d 389, certio-

rari denied, 428 U.S. 915 (CA8 1975).

Where Petitioner has never had a "full

Opportunity to conduct discovery” herein as

required by Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257 (1986), the trial court abu-

sed its discretion in denying Petitioner's Mo-

tion for Continuance of Proceedings on Mot-

| 13

ee

ions for Summary Judgment (34) supported by

Affidavits (35,37,39) of Petitioner and

thereafter abused its discretion in granting

Respondents’ Motions for Summary Judgment.

3. WITH NO STATUTORY AUTHORITY, CITY DOES

NOT UNDER COLOR OF ITS POLICE POWER

HAVE RIGHT TO KEEP AND DISSEMINATE RE-

PORT ON PETITIONER'S CONDUCT FOR WHICH

HE HAD ° NOT BEEN CHARGED WITH A CRIM-

INAL OFFENSE AND WHEREIN HE HAD BEEN

DETAINED BY POLICE FOR A REASON OTHER

THAN AN ARREST FOR A CRIMINAL OFFENSE ;

THE KEEPING AND DISSEMINATION OF WHICH

REPORT INVADES “PETITIONER'S RIGHT TO

PRIVACY GUARANTEED BY THE FOURTH AMEND-

MENT IN VIOLATION OF THE DUE PROCESS

CLAUSE OF FOURTEENTH AMENDMENT

SDCL 23-5-1 in material part provides:

"The attorney general shall procure and

file for record . . . information as

may be pertinent of all persons who

may hereafter be taken into custody

for offenses other than those arising

solely out of the violation of the

fish, game, conservation, or traffic

laws of this state with the exception

of those persons charged with driving

a motor vehicle while under the influ-

ence of alcoholic beverages, and also

of all criminals wheresoever the same

may be procured... ;

from which statute Respondent City of Sioux

Falls derives its police power to compile a

record of criminal offenses for which Petiti-

oner may have been arrested, charged and con-

14

in.

victed. Said Respondent did not therefrom de-

rive a police power to keep and disseminate

fatse and defamatory contents of the noncrimi-

nal May 28, 1978 incident report (Exhibit A

attached to Exhibit C in sealed envelope at-

tached to Petitioner's Affidavit (37)) as Re-

spondent John Roe did on October 26, 1990 to

Respondents Armstrong and Hemmingsen for

their television broadcasts to the public.

SDCL 23-5-10(1) provides:

"'Confidential criminal justice informat-

ion,’ criminal identification informati-

on compiled pursuant to chapter 23-5,

criminal intelligence information, crim-

inal investigative information, criminal

statistics information made confidential

pursuant to §23-6-14, and criminal jus-

tice information otherwise made confiden-

tial by law" (emphasis added).

‘SDCL 1-27-1 in material part provides:

"In every case where the keeping of a rec-

ord... is required of an officer or a

public servant under any statute of this

state, such record . . . shall be kept

available and open to inspection by any

person during the business hours of the

office or place where the same is kept."

SDCL 1-27-3 provides:

"Section 1-27-1 shall not apply to such

records as are specifically enjoined to

be held confidential or secret by the

laws requiring them to be so kept."

15

ee OL EE

SDCL 23-5-11 provides:

"Section 1-27-1 does not apply to confi-

dential criminal justice information.'

As the aforesaid May 28, 1978 noncriminal in-

cident report was "confidential investigative

information" within the meaning and by opera-

tion of SDCL 23-5-10(1), Respondent John Doe

violated SDCL 1-27-3 and 23-5-11 in reading

the contents of the confidential May 28, 1978

noncriminal incident report over the telephone

to Respondent Armstrong for television broad-

cast thereafter by Respondents Armstrong and

Hemmingsen; which broadcasts by conspiratori-

al design of all Respondents to so defame and

stigmatize Petitioner's reputation as to have

immediately resulted in foreclosure of Petit-

ioner's opportunity to be employed as a state

trial court judge by way of election on Novem-

ber 6, 1990 by popular vote of the electorate,

and has since and shall forever hereafter

have foreclosed any opportunity for Petition-

er to earn a living as a lawyer.

Corbitt v. Andersen, 778 F.2d 1471 (CALO

1985) holds that where the state under color

16

RE RS ORE eS Se a

of law not only defamed psychologist but crea-

ted a stigma that foreclosed his opportunity

to take advantage of other employment opportu-

nities, the psychologist made out a prima fa-

cie case that his Fourteenth Amendment liber-

ty interest had been violated by actions of

the state and was actionable through 42 U.S.C.

§1983. Given the heretofore denied opportuni-

ty, Petitioner can likewise herein show that

defamations of Petitioner by Respondents cre-

ated such stigma that Petitioner, as a direct

result thereof, thereby lost his job opportun-

ity to be a judge and he has thereby been

foreclosed from any other future job opportun-

ities as a practicing lawyer.

Where no conviction had ensued from ar-

rest for crime and records division of city

police department was by ordinance prohibited

from dissemination of foregoing arrest infor-

mation as police department did in violation

of said ordinance, Utz v. Cullinane, 520 F.2d

467, 480-81 (CA D.C. 1975), holds:

". . . Due process obligates the govern-

ment to accord an individual the opportu-

nity to disprove potentially damaging al-

3,

legations before it disseminates infor-

mation that might be used to his detri-

ment. The proper forum for a defini-

i tively adjudicating an individual's

a guilt or innocence is a trial that con-

. forms to constitutional strictures; if

the government aborts that procedure

. . ., the Constitution requires that

he be treated as though he engaged in

no criminal activity. For the govern-

ment to disseminate an arrest record

pertaining to the allegedly criminal

episode, when it knows that employers

may infer that the individual was guil-

ty rather than innocent of the crime,

effectively permits the government to

inflict tape pes: dispite the fact

that guilt was not constitutionally 2:s-

tablished."

Given the opportunity in advance of the trial

court's April 19, 1994 Summary Judgment for

Respondents, Petitioner would have proved

that Respondents John Doe and City of Sioux

Falls intentionally disseminated false and de-

famatory contents and false conclusions from

the noncriminal May 28, 1978 SFPD incident re-

port to television broadcaster Respondents

Armstrong and Hemmingsen to the broadcasted

end of falsely imputing that Petitioner had

on May 28, 1978 committed a heinous crime to

aforesaid Respondents’ intentional bad faith

end that Petitioner not gain employment as a

judge in the November 6, 1990 general elect-

| 18

ion in which Petitioner was a candidate for

state circuit court judge with the conse-

quence that Petitioner will never secure em-

ployment as a lawyer nor restore to the via-

ble private practice of law.

Utz v. Cullinane, supra at page 482 (foot-

note 41), further holds that the therein ag-

grieved parties’ rights to privacy included

their rights to consent to release of arrest

information should have been honored by the

police department at least where no convict-

ion of said aggrieved parties had ensued and

there was no countervailing government inter-

est adjudicated to the satisfaction of a

court. In the case at bar, Petitioner was nev-

er arrested or charged, much less convicted,

for a crime, and Respondents John Doe and Ci-

ty of Sioux Falls cannot herein present any

countervailing lawful interest in their re-

lease of false and defamatory confidential in-

formation falsely imputing that Petitioner

had committed a crime to Respondents Midconti-

nent Broadcasting, Hemmingsen and Armstrong

and thereafter broadcast to the public in vio-

19

lation of SDCL 1-27-3 and 23-5-11.

Because false and defamatory information

released by Respondent City of Sioux Falls by

and through its yet to be by name identified

employees, Respondents John Doe, Jane Doe and

John Roe, that Petitioner had greeted parishi-

oners in the nude at a church, been charged

d arrested for a heinous felony and thereaf-

yrs committed to the state mental hospital to

Respondents Midcontinent Broadcasting, Hem-

mingsen and Armstrong for their television

broadcasts so highly stigmatized Petitioner

with such a badge of infamy as to destroy Pe-

titioner's reputation for character in his

community, precluded Petitfoner's election op-

portunity from securing employment as a judge

on November 8, 1990, precluded Petitioner

from continuing to earn a living as a sole

practitioner of law and forever foreclosed Pe-

titioner from in the future securing employ-

ment as a lawyer by a law firm, a corporation

or government, Petitioner was thereby entitl-

ed, by guarantee of the Fourteenth Amendment

and controlling precedent of Wisconsin v. Con-

20

stantineau, 400 U.S. 433, 436-37 (1971), to

due process of hearing on lawfulness of the

release and broadcast of confidential informa-

tion in face of and contrary to statutes (SDCL

1-27-32, 23-5-10(1) and 23-5-11) prohibiting

the release of which government record to the

public, and notice of hearing thereon.

4. GOVERNMENT RESPONDENTS' INTENTIONAL, ARB-

ITRARY AND UNWARRANTED RELEASE OF CONFI-

DENTIAL RECORD ABOUT PETITIONER TO BROAD-

CASTING RESPONDENTS WHERE PROHIBITED BY

STATE STATUTES ENACTED TO PROTECT CITI-

ZENS FROM PUBLICATION THEREOF INVADED PE-

TITIONER'S RIGHT TO PRIVACY GUARANTEED

BY FOURTH AMENDMENT IN VIOLATION OF E-

QUAL PROTECTION CLAUSE OF 14TH AMENDMENT

Petitioner's civil right of privacy herein

suacenteed by the Fourth Amendment is enforce-

able against arbitrary invasions by Respon-

dents through due process clause of the Four-

teenth Amendment. Berger v. State of New York,

388 U.S. 41 (1967); I.N.S. v. Delgado, 466

U.S. 466 U.S. 210 (1984); State of Delaware v.

Prouse, 440 U.S. 648 (1979). The principal ob-

jective of the Fourth Amendment is protection

of privacy rather than property, and the es-

sential purpose of this amendment is to shi-

21

eld the citizen from unwarranted intrusions

into his privacy as respectively held in War-

den, Maryland Penitentiary v. Hayden, 387

U.S. 294 (1967) and Jones v. U.S., 357 U.S.

493 (1958).

Absent exigent circumstance, the Fourth

Amendment prohibits any intrusion on a citi-

zen's privacy without a prior judicial deter-

mination that the proposed invasion of priva-

cy is lawful. U.S. v. Burch, 432 F.Supp. 961

(DC Del. 1977), affirmed 577 F.2d 729. The

only circumstance herein that motivated Re-

spondents John Doe, Jane Doe, John Roe and

City of Sioux Falls to so release the false

and defamatory contents of the noncriminal

May 28, 1978 incident report together with

false and defamatory incompetent opinion

that Petitioner had been arrested for and

charged with a felony and false and defama-

tory of record government information that

Petitioner had greeted parishioners in the

nude at a church and was thereafter committed

to the state mental hospital to Respondents

Midcontinent Broadcasting, Hemmingsen and Arnm-

22

strong for their television broadcasts to the

highly stigmatic extent required to grotesque-

ly “defame and irreparably damage Petitioner's

character and reputation to by any means ne-

cessary foreclose any opportunity Petitioner,

but for the egregious invasion of his privacy

by Respondents, may have had for employment as

a state circuit court judge; hardly the "exi-

gent" circumstance required by u.8: v. Burch,

to justify, as by her admitted in her below

quoted answer to Petitioner's interrogatories

of record in the state action, Respondent Arn-

strong's, without lawful authority, directly

accessing the confidential criminal investiga-

tion records computer bank of the police de-

partment of Respondent City of Sioux Falls for

retrieval therefrom on her private commputer

screen a false and defamatory confidential

printout:

". . . of the May 28, 1978 incident which

was shown on the screen as a statutory

rape. It was from that investigation

that the police case report was then

found on the microfiche and read to me

over the telephone by Source A"

in violation of SDCL 1-27-3 and 23-5-11l enact-

*

"Source A" is Respondent John Doe.

23

ed by the South Dakota legislature to protect

the public at large from invasions of privacy

by law enforcement agencies of South Dakota.

Petitioner's mixed 4th and 14th Amendment .

right not to have city law enforcement with-

out due process release confidential investi-

gative record to media for publication should

be equal to that of person who has a federal

law enforcement record, the privacy of which

secures by operation of the 5 U.S.C. §522(b)

(7)(C) release exemption to Freedom of Infor-

mation Act and therewith creates an actionable

§1983 right of privacy which should not have

been denied by the lower courts just because

the confidential government record at issue is

compiled by a municipal police department. See

FBI v. Abramson, 456 U.S. 615, 631 (1982); and

Strassmann v. U.S. Dept. of Justice, 792 F.2d

1267, 1269 (CA4 1986 - journalist denied access).

Violation of the equal protection clause of

the Fourteenth Amendment is actionable through

42 U.S.C. §1983. Shock v. Tester, 408 F.2d 852

(CA8 1969).

By precedent of Glicker v. Michigan Liquor

Control Comm'n, 160 F.2d 96 (CA6 1947), the

24

purpose of the equal protection clause is to

protect every person within state jurisdicti-

on against intentional and arbitrary breach

of right to privacy statutes (SDCL 1-27-3 and

23-5-11 by government to the selective sole

detriment of Petitioner as a candidate for

membership in an identifiable group (judges)

from which group a yet to be identified gov-

ernment agent, at the behest of and in conspi-

racy and collusion with a commercial televis-

ion news broadcaster, acts to exclude Petiti-

oner as a member. Equal protection requires

uniform treatment of persons standing in the

same relation to the governmental action at

issue. Reynolds v. Sims, 377 U.S. 533 (1964).

The equal protection clause is applicable to

discriminatory government action in admini-

stration and enforcement of SDCL 1-27-3 and

23-5-1l by Respondents John Doe, Jane Doe,

John Roe and City of Sioux Falls; which selec-

tive violation by said governmental Respon-

dents herein clearly demonstrates to be vio-

lative of Petitioner's right to equal protect-

‘ion of his right to privacy embodied in SDCL

25

1-27-3 and 23-5-11 and guaranteed by the

Fourth Amendment. See Britton v. Rogers, 631

F.2d 572 (CA8 1980), cert. denied 451 U.S.

359 «

Judge candidates not excepted as herein::un-

lawfully the case, when a state affords one

person a right by statute, it must afford all

persons the same right. Sawyer v. Sigler, 320

F.Supp. 690 (DC Neb. 1970), affirmed 445 F.2d

818.

As required by Personnel Adm'r of Mass. v.

Feeney, 442 U.S. 256 (1979) to be herein acti-

onable as a violation of the equal protection

clause of the Fourteenth Amendment, Respondents

John Doe, Jane Doe, John Roe and City of Sioux

Falls conducted their "discriminatory" course

of action in selectively excluding only Petit-

ioner from his right to protection of SDCL l-

27-3 and 23-5-11 for the sole reason and "“be-

cause of" the fact that he was a lawyer candi-

date to be a member of a clearly identifiable

group (state circuit court judges) from which

the aforesaid government Respondents unlawful-

ly acted, in conspiracy with media Respondents

26

sinner

Midcontinent Broadcasting, Armstrong and Hen-

mingsen, to adversly effect Petitioner'’s op-

portunity to be a judge and therewith exclude

Petitioner as-a member thereof in invasion of

Petitioner's right to privacy guaranteed by

the Fourth Amendment in violation of Petition-

er's right to equal protection of SDCL 1-27-3

and 23-5-11 guaranteed Petitioner by the Four-

teenth Amendment; and for which Petitioner has

actionable §1983 claims against both the gov-

ernment and media Respondents herein.

5. AS GENUINE ISSUE OF FACT REMAINS TO BE

HEREIN RESOLVED BY A JURY AS TO WHETHER

RESPONDENTS INTENDED TO VIOLATE SDCL 1-

27-3 AND 23-5-11, SUMMARY JUDGMENT WAS

IMPROPERLY ENTERED BY TRIAL COURT IN

ITS FAILURE TO COMPLY WITH FRCVP 56(C)

In examining a motion for summary judgment,

the trial court must first determine whether

any material factual issues exist which can

only be resolved by a trial on the merits

thereof. U.S. v. Allen, 578 F.2d 236 (CA9 1978);

see also Roterman v. U.S. Steel, 472 U.S. 1139

(CA8 1973). Where trial court grants summary

judgment, there must be no genuine issue of

any material fact, and the moving party must

27

be entitled to judgment as a matter of law.

Oaark Air Lines v. Air Line Pilot Ass'n,

577 F.Supp. 487 (DC Mo. 1983). As genuine

issues of fact remain to bé herein resolved

by a jury as to whether the government Respon-

dents, in releasing the confidential contents

of the noncriminal May 28, 1978 incident re-

port, "intended" to exclude Petitioner from

being a member of identifiable group (judges)

by selective non-enforcement of SDCL 1-27-3

and 23-5-11 to sole detriment of Petitioner;

trial court erred in granting summary judg-

ment for Respondents.

6. DUNKER AFFIDAVIT FRAUDULENTLY CHANGES

NONCRIMINAL INCIDENT REPORT INTO ARREST

FOR CRIMINAL OFFENSE IN EX POST FACTO

CORROBORATION OF RESPONDENTS’ BROADCAST

THAT PETITIONER HAD BEEN ARRESTED AND

CHARGED FOR HEINOUS FELONY AND COMMIT-

TED TO STATE MENTAL HOSPITAL

. Due to 30 page limitation for this petiti-

on, Petitioner has to rest on dbove argument.

7. NEWLY DISCOVERED EVIDENCE THAT RESPONDENT

BREKKE RELEASED FALSE AND DEFAMATORY CON-

. FIDENTIAL INFORMATION TO STATE COURT THAT

PETITIONER HAD BEEN CHARGED AND ARRESTED

FOR CRIME AND TAKEN TO STATE MENTAL HOSPI-

TAL WORKED FRAUD ON STATE COURT AND, FOR

WANT OF DISCLOSURE THEREOF HEREIN, THE

LOWER COURTS HEREIN

28

On August 26, 1993, Respondent Brekke, with-

out notice to Petitioner, under color of law

adduced tnto the state court record a SFPD com-

puter printout containing the undisputed-false

entry that Petitioner had on May 28, 1978 been

arrested for statutory rape and another SFPD

record with the undisputed false entries that

Plaintiff had been “charged” with a heinous

felony on May 28, 1978 and, in’ disposition of

an unrelated misdemeanor, taken to the state

mental hospital. Such falsified police records

worked fraud on the state trial court to the

total prejudice of Petitioner's state .action,

the nondisclosure of which tortious conduct by

Respondent Brekke, being material facts requi-

red for Plaintiff to herein fully litigate his

claims against Respondents Brekke and City of

Sioux Falls, worked fraud on the lower %J.S.

District Court in its uninfoemed dismissal of

Petitioner's §1983 claims herein against Re-

spondents Brekke and City of Sioux Falls.

By precedent of Borunda Vv. Richmond, 885

F.2d 1384 (CAY 1988), the foregoing falsified

police records transmitted by Respondents Brek-

29

Ke and City of Sioux Falls to the state trial

court and not disclosed to the U.S. District

Court in advance of it April 19, 1994 Summary

Judgment for Respondents are herein actionahle

against said Respondents by remedy of §1983

even if the undisputed falsification and disse-

semimation of confidential records resulted

from "simple negligence” of said Respondents.

CONCLUSION

As the Court of Appeals“ decision that:

1. privacy of false and defamatory police re-

cord whereon no criminal charge was filed

is not a fundamental right conflicts with

Wisconsin v. Constantineau, Utz v. Culli-

mane and Borunda v. Richmond, supra, and

the strongly implied holding of Paul v.

Davis, 424 U.S. 693, 702, 705 (1976) that

Petitioner’s herein destroyed right to

make a living as a result of the unlawful-

ly published false charges that Petition-

er committed a crime is creative of a fun-

damental right, actionable through §1983,

not to be herein intruded upon by govern-

ment; and

2. selective non-enforcement of privacy stat-

utes because Petitioner was a lawyer seek-

ing election as a judge is not violative

of equal protection clause conflicts with

Reynolds v. Sims and Mass. v. Feeney, supra;

Petitioner this September 5, 1995 prays that the

Court grant his Petition for Writ of Certiorari.

Richard Hopewell

Petitioner pro se.

423 South P ips Avenue

Sioux Falls, So. Dak. 57102

30

APPENDIXES

[APPENDIX A]

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-2286

Richard Hopewell’, *

: *

Appellant, x Appeal from the Uni-

- » ted States District

; % Court for the Dis-

William™Duriker, et al. , trict of South Dako-

Appellees. is

* [ UNPUBLISHED]

Submitted May 23, 1995 = Filed June 5, 1995

Before WOLLMAN, Circuit Judge, HEANEY, Senior

Circuit Judge, and BEAM, Circuit Judge.

PER CURIAM.

Richard Hopewell appeals from the district

court"s grant of summary judgment to all defen-

dants in his 42 U.S.C. § 1983 action. We affirn.

In the fall of 1290, Hopewell, an attorney,

was a candidate for state court judge in Sioux

Falls, South Dakota, On October 26, several

weeks hefore election day, Jessica Armstrong

and Steve Hemmingsen, television news veporters

for KELOland News, owned by Midcontinent Broad-

casting Corporation (the “media” defendants) ,

aired a story about Hopewell, disclosing the

details of Hopewell“s arrest on May 28, 1978,

on charges that were eventually dropped. Hope-

well lost the election. Hopewell brought a

32

state court action for libel against the media

defendants, which ended in a summary judgment

for these defendants.

Hopewell then brought the present action, al-

leging that the media defendants conspired with

unidentified City of Sioux Falls employees to

disclose his arrest record and that the disclo-

sure denied his equal protection. Hopewell al-

so alleged that defendants Sioux Falls police

officer William Dunkex, city attorney Janet

Brekke, and Midcontinent Broadcasting violated

his equal protection rights by disclosing the

same information in Hopewell“s state libel ac-

tion; and that both disclosures violated his

substantive and procedural due process rights.

The district court granted summary judgment,

finding no constitutional right of Hopewell's

implicated.

We review de novo the district court's

grant of summary judgment; where the unresolved

issues are primarily legal rather than factual,

summary judgment is particularly appropriate.

See Crain v. Board of Police Comm'rs, 920 F.2d

1402, 1405-06 (8th Cir.1990). "Section 1983 ‘is

33

not a source of substantive rights,' but mere-

ly provides “a method for vindicating federal

rights elsewhere conferred,‘ Albright vy. Qli-

ver, 114 S.Ct. 807, 811 (1994) (quoting Baker

v. McCollan, 443 U.S. 137, 144, n.3 (1979)).

Hopewell"s equal protection claims fail.

First, he did identify a suspect classificati-.

on or an infringed fundamental right. See MSM

Farms, Inc. v,-Spire, 927 F.2d 330, 332 (8th

Cir. 1991) (where no suspect class or funda-

mental right involved, classification is pre-

sumed constitutional and subject to only rat-

ional Basis scrutinyy. Second, Hopewell does

not explain how he was treated differently

from others similarly situated. See Ahdullah

v. Gunter, 949 F.2d 1032, 1037 (th Cir, 1991),

cert. denied, 112 S.Ct. 1995 (1992) (equal pro-

tection plaintiff must show he was similarly

situated to others, yet treated differently).

As to Hopewell"s substantive due process

claims, the disclosure of arrest records, such

as those disclosed in the present case, ordi-

narily does not infringe upon any fundamental

right to privacy. See Paul v. Davis, 424 U.S.

34

aaa I a hy

693, 713 (1976) (declining to establish funda~-. .

mental privacy right in one's arrest records) ;

Scheetz v. The Morning Call, Inc., 946 F.2d

202, 206 (3rd Cir. 1991). We also find no ba-

sis for Hopewell"s contention that the South

Dakota statutes he cites gave him a liberty in-

terest in the confidentiality of his arrest

records, entitled to procedural due process

protections. See Bagley v. Rogerson, 5 F.3d

325, 328 (8th Cir. 1993).

The district court did not abuse its discre-

tion in denying Hopewell'’s Federal Rule of Ci-

yil Procedure 56(f£) motion for a continuance,

as he did not indicate the nature of the dis-

covery he sought or how it would help him. See

Humphereys v. Roche Biomedical Lab. Inc., 290

F.2d 1078, 1081 (8th Cir. 1993); United States

Through Small Business Admin. v. Light, 766

F.2d 394, 397-98 (8th Cir. 1985) (per curiam).

Finally, as Hopewell failed to submit his pro-

posed amended complaint with his motion to

amend, the district court did not abuse its

discretion in denying Hopewell"s motion for

leave to file his third amended complaint. See

35

Clayton v. White Hall School Dist., 778 F.2d

(8th Cir. 1985).

The judgment is affirmed.

36

[APPENDIX 8B]

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

- et. &ecetr ae 1 2R tw Ser ee ee

RICHARD HOPEWELL, * CIV 93-4175

Plaintiff, *

vs. * ORDER OF DISMISSAL

WILLIAM DUNKER, et al.*

Defendants. *

ea ag eet Pe CR a ee ees

All pending motions came on for hearing on

April 18, 1994, with the plaintiff appearing

by Wendy Allison Nora, and with defendant Dun-

ker et al. appearing by William P. Fuller and

with defendant Midcontient Corp. et al. ap-

pearing by Timothy M. Gebhart, and

After arguments of counsel and upon the

record,

IT IS ORDERED:

(1) That the plaintiff's Motion for Contin-

uance of Proceedings on Motions for Summary

Judgment, Doc. 34, is denied.

(2) That Dunker et al.'’s Motion to Dismiss

as to the City of Sioux Falls, Docs. $5 32 5°38,

37

and 23, will he treated as a motion for sum-

mary judgment and is granted and the plain-

tiff"s claims against said defendants are

dismissed.

(3) That Midcontinent Corp. et al‘ts Motion

to Dismiss Second Amended Complaint or Alter-

natively for Summary Judgment, Docs. 3, 14,

19, and 25, will be treated as a motion for

summary judgment and is granted and the plain-

tiff"*s claims against said defendants are dis-

missed.

(4) That the Clerk of Courts shall enter

judgment dismissing all of plaintiff"s federal

claims against all defendants with préjudice,

and shall enter judgment dismissing plain-

tiff"s pendent state claims without préjudice.

(S) That Defendants* Motion for Sanctions,

Doc. 27, is denied.

Dated this 18th day of April, 1994.

BY THE COURT:

7s/ John B. 3ones

Chier Judge

ATTEST: Wm F, Clayton,Clerk

By: /s/ Linda M. Ziegler

Deputy

(SEAL)

38

[APPENDIX C]

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

* * * * * * * * * * * *

RICHARD HOPEWELL, #£=* CIV 93-4175

Plaintiff, *

ORDER

[in material part]

vs.

WILLIAM DUNKER et al.,*

Defendants.’ *

eo « t.. 2 @:, 82 2 Ss eS

After examination of the record, it appears

that plaintiff's Motion For Leave to File Sec-

ond and Third Amended Complaints, Doc. 20,

. should be denied as to the Third Amended

Complaint because of plaintiff's failure to

comply with District of South Dakota Local Ru-

le 15.1 by failing to file a copy of the pro-

posed amanded pleadings with the motion.

Dated this 24th day of February, 1994.

BY THE COURT:

/s/ John B. Jones

Chief Judge

ATTEST: William F. Clayton, Clerk

By: /s/DeAnn Martin (SEAL)

Deputy

39

LM Lm

[APPENDIX D]

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 94-2286SDSF

Richard Hopewell, *

Appellant, * Appeal from the

ted States District

vs. * Court for the Dis-

trict of South Dako-

William Dunker, et al. * ta.

Appellees y» (in material part]

Appellant's motion for suspension of the

appeal and for remand to the trial court is

denied. See Winter v. Cerro Gordo County Con-

servation Board, 925 F.2d 1069, 1073 (8th Cir.

Lvs).

August 17, 1994

Order Entered at the Direction of the Court:

/s/Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

40