# Petition for Writ of Certiorari — Hopewell v. Dunker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2223%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 516 U.S. 965 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2223%3A1. Public record. Not legal advice.