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Brigham Young University Law SchoolBYU Law Digital Commons
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
Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc1
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 -
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