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Utah Supreme Court Briefs

1989

Craig B. Herman, Thomas J. Opfar, Bobby LeeBoog Jr. v. The State of Utah Attorney General,Judicial District Judges, Prosecutors, Attorneys :Reply BriefUtah Supreme Court

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Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.R. Paul Van Dam; attorney general; C. Dane Nolan; assistant attorney general; attorneys forrespondents.Craig B. Herman, pro se; Thomas J. Opfar, Bobby Lee Boog; appellants for petitioners.

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Recommended CitationReply Brief, Craig B. Herman, Thomas J. Opfar, Bobby Lee Boog Jr. v. The State of Utah Attorney General, Judicial District Judges,Prosecutors, Attorneys, No. 890538.00 (Utah Supreme Court, 1989).https://digitalcommons.law.byu.edu/byu_sc1/2771

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Craig B. Herman, Pro Se P.O. Box 250 Draper, Utah 84020

*******************************************^

IN THE UTAH SUPREME COURT STATE OF UTAH

Craig B. Herman,

Thomas J. Qpfar,

Bobby Lee Boog JR.,

Appellants/Petitioners,

vs. The State of Utah Attorney

General judicial District Judges,

Prosecutors,Attorneys, and John

Does 1-10,

Appellees/Respondants.

CASE NO.890538

PRIORITY NO. 3

REPLY BRIEF OF APPELLANTS/PETITIONERS

APPEAL FROM THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY

THE HONORABLE SCOTT DANIELS, PRESIDING

CRAIG B. HERMAN, PRO SE THOMAS J. OPFAR BOBBY LEE BOOG, JR. P.O. BOX 250 DRAPER, UTAH 84020

APPELLANTS/PETITIONERS OF THE CLASS

R. PAUL VAN DAM (3312) UTAH ATTORNEY GENERAL C. DANE NOLAN ASSISTANT ATTORNEY GENERAL 6100 SOUTH 300 EAST SALT LAKE CITY, UTAH 84020 MAR 1 1 1991

ATTORNEYS FOR THE APPELLEES/RESPONDANTS Clerk, Supreme Court, Utah

Craig B. Herman, Pro Se P.O. Box 250 Draper, Utah 84020

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

IN THE UTAH SUPREME COURT STATE OF UTAH

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

Craig B. Herman,

Thomas J. Opfar,

Bobby Lee Boog JR.,

Appellants/Petitioners,

vs.

The State of Utah Attorney

General,Judicial District Judges,

Prosecutors,Attorneys, and John

Does 1-10,

Appellees/Respondants.

REPLY BRIEF OF APPELLANTS/PETITIONERS

APPEAL FROM THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY

THE HONORABLE SCOTT DANIELS, PRESIDING

CRAIG B. HERMAN, PRO SE THOMAS J. OPFAR BOBBY LEE BOOG, JR. P.O. BOX 250 DRAPER, UTAH 84020

APPELLANTS/PETITIONERS OF THE CLASS

R. PAUL VAN DAM (3312) UTAH ATTORNEY GENERAL C. DANE NOLAN ASSISTANT ATTORNEY GENERAL 6100 SOUTH 300 EAST SALT LAKE CITY, UTAH 84 020

ATTORNEYS FOR THE APPELLEES/RESPONDANTS

CASE NO.890538

PRIORITY NO. 3

- 1 -

TABLE OF CONTENTS

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES 3

JURISDICTION OF THE APPELLATE COURT 4

STATEMENT OF CASE 4

ARGUMENT 4 8

CONCLUSION 9

CERTIFICATE OF MAILING . • 9

- 2 -

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION:

AMENDMENT V ( DUE PROCESS) .6,8

AMENDMENT XIV (DUE PROCESS & EQUAL PROTECTION) 5,6,8

UTAH CONSTITUTION:

ARTICLE I, SECTION 7 ( DUE PROCESS ) 6,8

ARTICLE I, SECTION 24 (UNIFORM OPERATION OF LAWS) 5,6,8

UTAH CODE ANN.:

STATUTE 78-2-2 4

STATUTE 78-2a-3 4

STATUTE 7 6-3-4 06 6,7,8

STATUTE 76-5-402.1 . 7

CASES CITED:

Nixon, 703 F. supp. at 571 (quoting United States v.

Hoover,727 F. 2d. 387, 389 (5th Cir. 1984) 6

- 3 -

JURISDICTION OF THE APPELLATE COURT

Jurisdiction of the Utah Supreme Court is appropriate

under Utah Code Ann. 78-2-2 (1953 as amended) and Utah Code

Ann. 782a-3(g) (1953 as amended).

STATEMENT OF THE CASE

We the Appellants/Petitioners have appealed from an order

of the Third Judicial District Court dismissing our petition

for a Writ of Habeas Corpus. The petition was filed on August

27. 1989. On November 20, 1989. a hearing was conducted before

the District Court. At the conclusion of that hearing the

District Court dismissed the petition with prejudice. The

appeal was filed on December 15, 1989.

ARGUMENT

Appellants/Petitioners will show that Appellees/Respondants

continue to try to use semantics, and continually try to

misconstrue the issues and facts at hand.

1. Appellees/Respondants in their own brief page 6,

paragraph 2 which states:

" The petitioners1 claim must be rejected because they admit that there was nothing unlawful relating to their own convictions and sentences, Petitioner's brief, page 9, and because the claim itself is based on facts.

The petitioners attached several newspaper clippings to their brief which they allege show that seven individuals who have committed the crimes enumerated in Utah Code Ann. Statute 76-3-406 were improperly given probation or in which the court improperly entered a lower category of offense. Addendums 1-5 and 7-8 to Petitioner's Brief. A close review of the Addendums indicate, however, that in only one instance has a District Court inappropriately granted probation or entered a lower category of offense:"

- 4 -

(a) In line 2 of paragraph 1, of the above two quoted paragraphs,

appellees/respondants have misconstrued the facts of what

appellants/petitioners have said in their brief on page 9,

"Plaintiffs do not claim that the sentence they received upon conviction violate Utah Law."

It is important that the rest of the paragraph also be included

from appellants/petitioners brief on page 9 that states;

"Plaintiffs do not claim that the sentence they received upon conviction violate Utah Law. However plaintiffs do maintain that the States District Courts fail to imprison others which the State has situated similarly to the plaintiffs themselves. This is not analogous to the imposition of the minimum mandatory terms which the plaintiffs received, thus discriminating against the plaintiffs in violation of the Equal Protection Clause." Under the United States Constitution, Amendment XIV, and the Utah Constitution, Article I, Section 24.

A Constitutional claim for violation of rights does not

have to prove that the violation was unlawful, only that civil

rights were violated.

(b) Appellees/Respondants admit in their brief on page

6, paragraph 2, line 6-9; that there is at least one instance

where A District Court inappropriately granted probation or

entered a lower category of offense.

Page 6, paragraph 2, line 6-9 states that:

11A close review of the Addendums indicate, however, that in only one instance has a District Court inappropriately granted probation or entered a lower category of offense."

When in fact, there are many instances of persons receiving

lower category of offense, probation, suspended sentences etc.

of the class similarly situated, but Appellants/Petitioners

have been denied discovery/production of documents. I violation

- 5 -

of our Due Process rights afforded us by the United States

Constitution Amendment v, and XIV; the Utah Constitution Article

1, Section 7. One though is sufficient to show a disparity

of sentencing, Prima Facia showing, which has created Unequal

Protection of the Law, Thus the Appellees/Respondants have

admitted a prima facia showing, which, "then the burden shifts

to the government to demonstrate a legitimate basis for

selectively selecting Appellants for prosecution.1' Or in

Appellants/Petitioners cases selecting them for sentences of

a minimum mandatory effect, Nixon, 703 F. supp. at 571 (quoting

United States v. Hoover, 727 F. 2d. 387, 389 (5th Cir. 1984).

(c) Again Appellees/Respondants misconstrue the facts

in their statement in their Brief on page G, paragraph 2, line

1-3; which states:

"The petitioners attached several newspaper clippings to their brief which they allege show that seven individuals who have committed the crimes enumerated in Utah Code Ann. Statute 76-3-406"

One of those (so called newspaper clipings) as the

appellees/respondants calls it, but in fact is not a newspaper

cliping at all, it is clearly an official Court Judgment of

the Seventh Judicial District Court In And for Emery County,

State Of Utah, Which states:

"The above named defendant appeared on May 28, 1986, together with his attorney, Pat Brian, and having previously entered his plea of guilty to the charge of AGGRAVATED SEXUAL ABUSE OF A CHILD, a First-Degree Felony, ...."

(d) Appellees/Respondants make supposition as to what

Mr. Dominguez was thinking. As stated on page 6, paragraph

3, of appellees Brief, which states:

- 6 -

"Addendum 1 - At no point does the addendum establish that Mr. Dominguez plead guilty to rape of a child under Utah Code Ann, 76-5-402.1. (It is very possible that Mr. Dominguez plead guilty to another crime and that the newspaper account improperly reported the plea.) This is supported by the fact that Mr. Dominguez was given a sentence commensurate with committing a second degree felony and carries a different sentence."

Supposition; They cannot know what Mr. Dominguez v/as

thinking. It does not alter the Facts, at any rate. Further,

the appellees quoted statement supports our facts that the

Court dropped the offense to a lower category, in violation

of Statute 76-3-406.

(e) Appellees again use supposition in their Brief, on

page 7, paragraph 2, line 4-7, which states:

" It is possible that Mr. Mortensen v/as convicted of a different crime and that the newspaper account improperly reported the matter "

Once again supporting Appellants/Petitioners facts that

the Court lowered the category of the offense, but also suspended

(f) In the Brief of appellees, on page 7, paragraph 5,

lines 1-5, which states:

!,One case of erroneous sentencing by District Court in the State of Utah, out of the hundreds of sentencings which have occurred since Utah Code Ann. Statute 76-3-406 (1953 as amended) was promulgated, does grant a right to the petitioners to not be incarcerated pursuant to minimum mandatory statutes."

The claim is based on merely one case, but on overall

sentencing procedures. Simply because only one case is admitted

by the defendants, does not mean only one case occurred. Indeed,

it indicates that claims by Appellants are based on fact.

And further, because Appellants have been denied discovery

- 7 -

or production of documents, that the defendants do not want

the Appellants/Petitioners to further prove with additional

facts their claims of Unequal Protection of the Law under ,

Due Process, etc., as given us by both the United States

Constitution, Amendments V, and XIV; and the Utah Constitution.

Article I, Section 7, and 24th.

- 8 -

CONCLUSION

For the reason and facts set forth above in Appellants

Reply Brief, and Appellants Brief, the District Court*s dismissal

of the petition for Writ of Habeas Corpus was improper and

should not be upheld by this Court.

We pray that this Honorable Court will see that our

Constitutional Rights are upheld, and that Equal justice will

be served.

»ated this !#t± day of March, 1991.

We hereby certify caused to be mailed a forgoing Reply/Brief o Utah Supreme Court, 33 Utah 84114; Attorney G Salt Lake City, Utah C. Dane Nolan, Assista Salt Lake City, Utah Postal Service.

CERTIFICATE OF MAILING

that on the yln day of March, 1991 We true and correct copy of the above and f Appellants/Petitioners to the following: 2 State Capital Building, Salt Lake City, eneral's Office, 236 State Capital Building, 4114; and to Attorney for the Appellees, nt Attorney General, 6100 South 300 East, 4107; postage prepaid to the United Sates

Dated t h i

AppeJL&n

is L{4h day of March, 1991-

Appellant//

- 9 -

Craig B. Herman, Pro Se P.O. Box 250 Draper, Utah 84020

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

IN THE UTAH SUPREME COURT STATE OF UTAH

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

Craig B. Herman,

Thomas J. Opfar,

Bobby Lee Boog JR.,

Appellants/Petitioners,

vs.

The State of Utah Attorney

General,Judicial District Judges,

Prosecutors,Attorneys, and John

Does 1-10,

Appellees/Respondants.

REPLY BRIEF OF APPELLANTS/PETITIONERS

APPEAL FROM THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY

THE HONORABLE SCOTT DANIELS, PRESIDING

CRAIG B. HERMAN, PRO SE THOMAS J. OPFAR BOBBY LEE BOOG, JR. P.O. BOX 250 DRAPER, UTAH 84020

APPELLANTS/PETITIONERS OF THE CLASS

R. PAUL VAN DAM (3312) UTAH ATTORNEY GENERAL C. DANE NOLAN ASSISTANT ATTORNEY GENERAL 6100 SOUTH 300 EAST SALT LAKE CITY, UTAH 84020

CASE N O . 8 9 0 5 3 8

PRIORITY NO. 3

MAR 1 1 1991

ATTORNEYS FOR THE APPELLEES/RESPONDANTS Clerk, Supreme Court, Utah

Craig B. Herman, Pro Se P.O. Box 250 Draper, Utah 84020

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

IN THE UTAH SUPREME COURT STATE OF UTAH

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

Craig B. Herman,

Thomas J. Qpfar,

Bobby Lee Boog JR.,

Appellants/Petitioners,

vs.

The State of Utah Attorney

General,Judicial District Judges,

Prosecutors,Attorneys, and John

Does 1-10,

Appellees/Respondants.

REPLY BRIEF OF APPELLANTS/PETITIONERS

APPEAL FROM THE THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY

THE HONORABLE SCOTT DANIELS, PRESIDING

CRAIG B. HERMAN, PRO SE THOMAS J. OPFAR BOBBY LEE BOOG, JR. P.O. BOX 250 DRAPER, UTAH 84020

APPELLANTS/PETITIONERS OF THE CLASS

R. PAUL VAN DAM (3312) UTAH ATTORNEY GENERAL C. DANE NOLAN ASSISTANT ATTORNEY GENERAL 6100 SOUTH 300 EAST SALT LAKE CITY, UTAH 84020

ATTORNEYS FOR THE APPELLEES/RESPONDANTS

CASE NO.890538

PRIORITY NO. 3

- 1 -

TABLE OF CONTENTS

TABLE OF CONTENTS 2

TABLE OF AUTHORITIES 3

JURISDICTION OF THE APPELLATE COURT 4

STATEMENT OF CASE 4

ARGUMENT 4 8

CONCLUSION 9

CERTIFICATE OF MAILING 9

- 2 -

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION:

AMENDMENT V (DUE PROCESS) 6,8

AMENDMENT XIV (DUE PROCESS & EQUAL PROTECTION) 5,6,8

UTAH CONSTITUTION:

ARTICLE I, SECTION 7 (DUE PROCESS) • 6,8

ARTICLE I, SECTION 2 4 (UNIFORM OPERATION OF LAWS) 5,6,8

UTAH CODE ANN.:

STATUTE 78-2-2 4

STATUTE 78-2a-3 4

STATUTE 76-3-406 6,7,8

STATUTE 76-5-402.1 7

CASES CITED:

Nixon, 703 F. supp. at 571 (quoting United States v.

Hoover,727 F. 2d. 387, 389 (5th Cir. 1984) 6

- 3 -

JURISDICTION OF THE APPELLATE COURT

Jurisdiction of the Utah Supreme Court is appropriate

under Utah Code Ann. 78-2-2 (1953 as amended) and Utah Code

Ann. 782a-3(g) (1953 as amended).

STATEMENT OF THE CASE

Vie the Appellants/Petitioners have appealed from an order

of the Third Judicial District Court dismissing our petition

for a Writ of Habeas Corpus. The petition was filed on August

27. 1989. On November 20, 1989. a hearing was conducted before

the District Court. At the conclusion of that hearing the

District Court dismissed the petition with prejudice. The

appeal was filed on December 15, 1989.

ARGUMENT

Appellants/Petitioners will show that Appellees/Respondants

continue to try to use semantics, and continually try to

misconstrue the issues and facts at hand.

1. Appellees/Respondants in their own brief page 6,

paragraph 2 which states:

11 The petitioners1 claim must be rejected because they admit that there was nothing unlawful relating to their own convictions and sentences, Petitioner's brief, page 9, and because the claim itself is based on facts.

The petitioners attached several newspaper clippings to their brief which they allege show that seven individuals who have committed the crimes enumerated in Utah Code Ann. Statute 76-3-406 were improperly given probation or in which the court improperly entered a lower category of offense. Addendums 1-5 and 7-8 to Petitioner's Brief. A close review of the Addendums indicate, however, that in only one instance has a District Court inappropriately granted probation or entered a lower category of offense:"

- 4 -

(a) In line 2 of paragraph 1, of the above two quoted paragrapns,

appellees/respondants have misconstrued the facts of what

appellants/petitioners have said in their brief on page 9,

"Plaintiffs do not claim that the sentence they received upon conviction violate Utah Law."

It is important that tne rest of the paragraph also be included

from appellants/petitioners brief on page 9 that states;

"Plaintiffs do not claim that the sentence they received upon conviction violate Utah Law. However plaintiffs do maintain tnat the States District Courts fail to imprison others which the State has situated similarly to the plaintiffs themselves. This is not analogous to the imposition of the minimum mandatory terms which the plaintiffs received, thus discriminating against the plaintiffs in violation of the Equal Protection Clause." Under the United States Constitution, x^mendment XIVr and the Utah Constitution, Article I, Section 24.

A Constitutional claim for violation of rights does not

have to prove that the violation was unlawful, only that civil

rights were violated.

(b) Appellees/Respondants admit in their brief on page

6, paragraph 2, line 6-9; that there is at least one instance

where A District Court inappropriately granted probation or

entered a lower category of offense.

Page 6, paragraph 2, line 6-9 states that:

"A close review of the Addendums indicate, however, that in only one instance has a District Court inappropriately granted probation or entered a lower category of offense."

When in fact, there are many instances of persons receiving

lower category of offense, probation, suspended sentences etc.

of the class similarly situated, but Appellants/Petitioners

have oeen denied discovery/production of documents. I violation

- 5 .

of our Due Process rights afforded us by the United States

Constitution Amendment vf and XIV; the Utah Constitution Article

I, Section 7. One though is sufficient to show a disparity

of sentencing, Prima Facia showing, which has created Unequal

Protection of the Law, Thus the Appellees/Respondants have

admitted a prima facia showing, which, "then the burden shifts

to the government to demonstrate a legitimate basis for

selectively selecting Appellants for prosecution." Or in

Appellants/Petitioners cases selecting them for sentences of

a minimum mandatory effect, Nixon, 703 F. supp. at 571 (quoting

United States v. Hoover, 727 F. 2d. 387, 389 (5th Cir. 1984).

(c) Again Appellees/Respondants misconstrue the facts

in their statement in their Brief on page 6, paragraph 2, line

1-3; which states:

"The petitioners attached several newspaper clippings to their brief which they allege show that seven individuals who have committed the crimes enumerated in Utah Code Ann. Statute 76-3-406"

One of those (so called newspaper clipings) as the

appellees/respondants calls it, but in fact is not a newspaper

cliping at all, it is clearly an official Court Judgment of

the Seventh Judicial District Court In And for Emery County,

State Of Utah, Which states:

"The above named defendant appeared on May 28, 1986, together with his attorney, Pat Brian, and having previously entered his plea of guilty to the charge of AGGRAVATED SEXUAL ABUSE OF A CHILD, a First-Degree Felony, . . . . "

(d) Appellees/Respondants make supposition as to what

Mr. Dominguez was thinking. As stated on page 6, paragraph

3, of appellees Brief, which states:

- 6 -

"Addendum 1 - At no point does the addendum establish that Mr, Dominguez plead guilty to rape of a child under Utah Code Ann. 76-5-402.1. (It is very possible that Mr. Dominguez plead guilty to another crime and that the newspaper account improperly reported the plea.) This is supported by the fact that Mr. Dominguez was given a sentence commensurate with committing a second degree felony and carries a different sentence."

Supposition; Tney cannot know what Mr. Dominguez was

thinking. It does not alter the Facts, at any rate. Further,

the appellees quoted statement supports our facts tnat the

Court dropped the offense to a lower category, in violation

of Statute 76-3-406.

(e) Appellees again use supposition in their Brief, on

page 7, paragraph 2, line 4-7, which states;

" It is possible that Mr. Mortensen was convicted of a different crime and that the newspaper account improperly reported the matter "

Once again supporting Appellants/Petitioners facts that

the Court lowered the category of the offense, but also suspended

sentence.

(f) In the Brief of appellees, on page 7, paragraph 5,

lines 1-5, which states:

"One case of erroneous sentencing by District Court in the State of Utah, out of the hundreds of sentencings which have occurred since Utah Code Ann. Statute 76-3-406 (1953 as amended) was promulgated, does grant a right to the petitioners to not be incarcerated pursuant to minimum mandatory statutes."

The claim is based on merely one case, but on overall

sentencing procedures. Simply because only one case is admitted

by the defendants, does not mean only one case occurred. Indeed,

it indicates that claims by Appellants are based on fact.

And further, because Appellants have been denied discovery

- 7 -

or production of documents, that the defendants do not want

the Appellants/Petitioners to further prove with additional

facts their claims of Unequal Protection of the Law under ,

Due Process, etc,, as given us by both the United States

Constitution, Amendments V, and XIV; and the Utah Constitution.

Article I, Section 7, and 24th.

- 8 -

CONCLUSION

For the reason and facts set forth above in Appellants

Reply Brief, and Appellants Brief, the District Court's dismissal

of the petition for Writ of Habeas Corpus was improper and

should not be upheld by this Court.

We pray that this Honorable Court will see that our

Constitutional Rights are upheld, and that Equal justice will

be served.

Dated thi i s ^ day of March, 1991.

CERTIFICATE OF MAILING

We hereby certi caused to be mailed forgoing Reply/Brief Utah Supreme Court, Utah 84114; Attorney Salt Lake City, Utah C. Dane Nolan, Assis Salt Lake City, Utah Postal Service.

fy that on the a true and cor of Appellants 332 State Capi General's Off 84114; and to

tant Attorney 84107; postag

tHJ, day of March, 19 91 We rect copy of the above and /Petitioners to the following: tal Building, Salt Lake City, ice, 236 State Capital Building, Attorney for the Appellees, General, 6100 South 300 East, e prepaid to the United Sates

Dated th

AppelJJm

is £4 day of March, 1991.

Appellant//

- 9 -