Opposition Brief — Conway v. First Trust Co.

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In The *

Supreme Court of the United States

October Term, 1988

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EILEEN CONWAY,

Petitioner,

vs.

FIRST TRUST COMPANY OF NORTH DAKOTA,

Respondent.

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On Petition for Writ of Certiorari

to the Supreme Court of

North Dakota

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BRIEF IN OPPOSITION

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J. PxHiuir JOHNSON

(Counsel of Record)

YuIL_, WoLD, JOHNSON

& Fever, P.C.

414 Gate City Building

P.O. Box 1680

Fargo, ND 58107

(701) 235-5515

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Does a Petition for Writ of Certiorari to review a

decision of the North Dakota Supreme Court affirming an

Order of the Nelson County, North Dakota, Court allow-

ing attorney’s fees and Personal Representative’s fees in a

probate proceeding present any federal constitutional

issue?

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AFFILIATED CORPORATIONS

First Trust Company of North Dakota is a wholly-

owned subsidiary of First Bank System, Minneapolis,

Minnesota. Other subsidiaries include:

CMB Investment Counselors

FBS Agricultural Credit Corporation

FBS Brokerage Services, Inc.

FBS Card Services, Inc.

FBS Leasing Corporation

FBS Merchant Banking

FBS Mortgage Corporation

FBS Properties Management, Inc.

First Group, Inc.

First Insurance

Matrix Leasing International, Inc. -

First Trust, Inc.

First Trust Company of Montana

There are First Bank banking subsidiaries at over 94

locations throughout the states of Minnesota, North

Dakota, South Dakota, Montana, Washington and

Wisconsin.

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TABLE OF CONTENTS

Page

CIRPOPR EASES WRMRO REED 6b 65 oc cca cecdeeeenandin i

AFFILIATED CORPORATIONS ...............:.. ii

pr ee ae Saye) 8 gg |. iv

SURO MEP 6 s6 asa vacanctacesssccducsens 1

OO ITER Ee a a a a 1

SIAITEMENT OF THE CASE..................... 2

SUMMARY OF ARGUMENT .................... 6

NE fn ace CA wan enubieseecvwuwacenle es 6

1. Petitioner Presents no Claim of Substance... 6

2. There is no Federal Question .............. 8

3. Sanctions for Frivolous Pleading and Litiga-

oe Be ee 9

4. This Extensively Litigated Proceeding Pre-

sents no Equal Protection or Due Process

neve lv ekeneh s cs bate k scutes ven ences 11

er er ery errr 13

iv

TABLE OF AUTHORITIES

Page

CASES

American Trust Co., Inc. v. South Carolina State Bd. of Bank

Control, 381 FSupp 313 (DS.C. 1974).............. 12

Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8

A 8. | eee eee errr err yr rrr re 11

Cohen v. Hulen, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed

Se Sra ewo seen tis seed vurs Senneecanraren se) 11

Collins v. Johnston, 237 U.S. 502, 35 S.Ct. 649, 59

Me yg Bt PPPOPTe PETC LTTE Cre ee rer TIT Ter 12

Conway v. Parker, 250 N.W.2d 266 (N.D. 1977) ........ 1

First Trust Company of North Dakota v. Conway, 345

Te Se GE SO a oobi cok d aes Shseawekaneaxes 1

First Trust Company of North Dakota v. Conway, 423

PUTA FOE WERE SOMES cccnnaceunsceceeeerncsenus 1

In the Matter of Estates of Kjorvestad, 287 N.W.2d

TOE EES T CT ETE TE CCC EET eC OCCC CET 1

In the Matter of Estates of Kjorvestad, 304 N.W.2d 83

RE PE aad cened eee ee esis leven enedee en esa 1

In the Matter of Estates of Kjorvestad, 375 N.W.2d

We US a eae tn a eieee ae Re ere ea es 8

In the Matter of Estates of Kjorvestad, 395 N.W.2d

Ne PRE ee Serer Pre rey Peer Orly 1

Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28

Ree Ge ROPE ree as a waaa pee eis 12

TABLE OF AUTHORITIES-—Continued

Page

CONSTITUTIONAL PROVISIONS AND STATUTES

Dee 05, Fe i io ns heed pa ke eho eee eee 11

po me Re ae 8&4 Arr rrr err rrr rrr 11

oe Me Rk Perrerrereerere rrr yy Tere ss 10

Ratle 36, WR. AGO P00: oo vee cece ccantecauanawens 10

eee Neh SE rr errr rer er rr ere rs yy 8

MIscELLANEOUS

Aammpok. 1 Le SR. TOE ons ck ik kccapeeseeee: 12

Uniform Probate Code (U.L.A.), p.1 (1988 Supp.)....11, 12

OPINIONS BELOW

Mrs. Conway, the Petitioner, has not provided cita-

tions for the reported decisions of the North Dakota

Supreme Court involving these estates. Those decisions,

and their citations are: Conway v. Parker, 250 N.W.2d 266

(N.D. 1977); In the Matter of Estates of Kjorvestad, 287

N.W.2d 465 (N.D. 1980); In the Matter of Estates of Kjor-

vestad, 304 N.W.2d 83 (N.D. 1981); First Trust Company of

North Dakota v. Conway, 345 N.W.2d 838 (N.D. 1984); In

the Matter of Estates of Kjorvestad, 375 N.W.2d 160 (N.D.

1985); In the Matter of Estates of Kjorvestad, 395 N.W.2d 162

(N.D. 1986); First Trust Company of North Dakota v. Con-

way, 423 N.W.2d 795 (N.D. 1988).

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JURISDICTION

The Final Judgment and Decision of the North

Dakota Supreme Court which is the subject of this appeal

was entered June 28, 1988. That decision reviewed a

County Court order which dealt only with fees of the

Personal Representative of the Estates of Guy Kjorvestad

and Selma Kjorvestad and the fees of its attorney subse-

quent to the Final Report and Accounting. The decision

and judgment of the North Dakota Supreme Court which

affirmed the Findings of Fact, Conclusions of Law and

Order of the Nelson County Court relating to the final

account and distribution of the estates was entered Octo-

ber 1, 1985. A decision and judgment of the North Dakota

Supreme Court dismissing the appeal of Amended Find-

ings of Fact, Conclusions of Law and Order for Distribu-

tion, which included approval of additional fees incurred

as a result of the previous appeal, was entered October

28, 1986.

Mrs. Conway claims jurisdiction under the Four-

teenth and Eighth Amendments to the United States Con-

stitution relating to the handling and accounting of the

estates. However, the only matter presented by this

appeal is the approval of fees for the personal representa-

tive and its attorney. No jurisdictional statute is cited.

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STATEMENT OF THE CASE

The estates of Guy and Selma Kjorvestad, a farm

couple from the small rural community of Aneta, North

Dakota, present the most litigated probate proceedings in

the history of North Dakota. Guy Kjorvestad died on

January 17, 1973. His wife, Selma, died a little more than

a year later on May 14, 1974. Their two daughters, Lor-

raine Parker of Grand Forks, North Dakota, and Eileen

Conway of Germantown, Tennessee, were named as joint

executrices under the will of Selma Kjorvestad and were

appointed jointly for the estate of Guy Kjorvestad.

The concept of joint administration, difficult even

with mutual respect 2nd patience, soon dissolved into

rancor and dispute between the two daughters. Each

daughter then retained her own lawyer. Under the pro-

cedures then in effect, appeals progressed from the

county probate court to the District Court and from the

District Court to the state Supreme Court. In January of

1977, the first appeal to the North Dakota Supreme Court

was decided, relating to questions of representation

before the Internal Revenue Service, payment of attor-

neys’ fees and a partial distribution to the heirs.

By May of 1979, due to the disputes and impasse in

administration, the Nelson County Court ordered both of

the executrices removed. That ruling was later sustained

by the District Court and in September of 1980, the

County Court of Nelson County appointed First Trust

Company of North Dakota as successor representative

under a supervised administration as provided by the

Uniform Probate Code, as adopted and in effect in North

Dakota on July 1, 1975.

In the meanwhile, an appeal of a previous order

regarding payment of legal services progressed to the

North Dakota Supreme Court which, in January of 1980

denied Mrs. Conway’s appeal. In December of 1982 a

hearing was had in Nelson County Court upon an interim

reconstructed account by the successor Personal Repre-

sentative and upon interim fees. Orders approving the

account and the fees were entered.

On April 29, 1983, a hearing was held in Nelson

County Court for approval of amended estate tax filings,

payment of previously incurred legal and accounting ser-

vices and payment of interim fees of the successor Per-

sonal Representative and its attorney. An order of

approval was entered and, since the appeal procedure

had been revised, the order was appealed by Mrs. Con-

way directly to the North Dakota Supreme Court. That

order was affirmed in a decision of the Supreme Court

dated February 23, 1984. In December of 1983, another

County Court order was entered, after hearing, approv-

ing certain disbursements and fees. This order was also

appealed by Mrs. Conway, but the appeal was dismissed

by the Supreme Court on motion.

On September 21, 1984, a hearing was held before

County Judge Ronald Dosch at Lakota, North Dakota,

upon a proposed Final Report and Account by the suc-

cessor Personal Representative. Mrs. Conway appeared

personally and presented extensive objections. Findings

of Fact, Conclusions of Law and Order for Allowance of

the Final Account and for distribution in each estate were

entered by Judge Dosch on October 2, 1984. The orders

were appealed to the North Dakota Supreme Court by

Mrs. Conway. On October 1, 1985, the North Dakota

Supreme Court affirmed the orders and directed that the

fees of First Trust and its attorney arising from the

appeal, as approved by the County Court, be assessed

against Conway’s share of the estates.

Upon remand to the County Court, First Trust Com-

pany submitted its affidavit as to fees together with pro-

posed amended findings and orders to Judge Dosch with

copies served upon Mrs. Conway. The amended findings

and orders were approved and signed by Judge Dosch on

December 5, 1985. Mrs. Conway appealed the amended

orders to the Supreme Court and on October 28, 1986, the

Supreme Court dismissed the appeal but held that Mrs.

Conway was entitled to a hearing with respect to fees.

First Trust Company then petitioned the County

Court for authorization and approval to pay unpaid and

future attorney’s and personal representative’s fees. A

hearing was held before County Judge Jonal Uglem on

February 10, 1987, at Lakota, North Dakota. Mrs. Conway

appeared and made her objections. On February 23, 1987,

Judge Uglem entered her order approving accrued fees

and authorizing future payments to the Personal Repre-

sentative and its attorney. Mrs. Conway appealed this

order to the North Dakota Supreme Court. In its opinion

and judgment dated June 28, 1988, the North Dakota

Supreme Court affirmed the Order, except as to any

provision for future fees arising from defending disci-

plinary complaints against the Personal Representative’s

attorney which were not sustained, and allowed double

costs and attorney’s fees of $250.00 against Mrs. Conway.

Mrs. Conway subsequently filed a Petition for Writ of

Certiorari in this Court for review of the June 28, 1988,

judgment of the North Dakota Supreme Court. She also

has written the Clerk of the Nelson County Court

requesting a docket file or sheet on the estates which the

Clerk declined to provide. Mrs. Conway on April 4, 1988,

apparently prepared a Petition to Inspect Probate Files

addressed to the Nelson County Court. To our knowl-

edge, the Petition has never been set for hearing, acted

upon, nor is there any provision in the court rules or

rules of procedure for such petition.

From 1975 through 1984 Mrs. Conway was repre-

sented by a succession of twelve different lawyers or law

firms. From 1984 to the present she has proceeded pro se.

She has also filed disciplinary complaints against each of

the attorneys representing her sister and the successor

Personal Representative. All of such complaints have

been denied. She has had her objections heard before four

different County Court Judges, two District Court Judges,

and nine different Justices of the five-member North

Dakota Supreme Court.

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SUMMARY OF ARGUMENT

Mrs. Conway’s petition is a repetition of unsubstanti-

ated claims and allegations made against participants in

the judicial process over the past fourteen years. In the

numerous hearings and appeals over that period of time,

no substantial evidence of this “probate crime” and cov-

erup has ever been provided.

There is no federal question for decision by this

Court since the most recent appeal dealt only with

approval of fees and sanctions for a frivolous appeal. The

sanctions imposed, charging her with fees relating to a

frivolous appeal were consistent with federal practice

and mild in view of the case history. There are no equal

protection or due process violations because Mrs. Con-

way was accorded full and multiple hearings upon her

objections under the Uniform Probate Code and the rules

of procedure applicable to civil actions in North Dakota.

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ARGUMENT

1. Petitioner Presents no Claim of Substance.

It is difficult to frame an intelligent response to an

argument which takes as its essential premise the corrup-

tion of the entire judicial system of the State of North

Dakota. The initial response must be that the judges,

lawyers, court personnel and parties involved are not

corrupt and Mrs. Conway has never presented credible

evidence of what she consistently describes as “the pro-

bate crime of the century.”

Justice Meschke of the North Dakota Supreme Court,

in October, 1985, when the merits of the final account

were actually before the Court, made the following sum-

mary of Mrs. Conway’s claims:

Without any references to the record, Conway’s

“statement of facts” rails against her sister (“manic

crime spree;” “embezzled money;” “embezzled

bonds, cash, bank money-orders, checks;” “forged”

signatures; “illegally redeemed securities and _ ille-

gally moved $100,668.68 in cash assets;” “looted four

safe deposit boes [sic];” “destroyed ... monthly bank

statements to cover-up additional forgeries;”

“destroyed all records;” and “embezzled approx-

imately $39,000.00 from the estate”); rails against one

prior attorney for the estate (“deceitfully misrepre-

senting himself;” “defied two court orders,” “felon-

ies, fraud, forgeries, theft, embezzlements and a

tangled web of falsified records to cover-up the

wrong-doing;” “10 years of trama [sic], threats,

insults, verbal and non-verbal abuse inflicted” by

him on her; his “ruthless, vicious interference;”

“conspired;” “concealed;” acted “illegally;” “also

practiced deceit;” and “cover-up [of] massive fraud

and felonies committed against the estate.”); rails

against one of her own lawyers (“concocted a

scheme;” “lied;” participating in a “fraudulent”

report; “fraudulent accountimg” [sic] and a “fraud

scheme.”) and rails against a prior accountant (“falsi-

fied bank deposits to cover-up Parker’s embezzle-

ments;” “falsified grain sales;” and “falsified bank

account ownership.”)

Her unsupported vilification extends to a county

judge (“brutally assaulted Conway;” “cover up” of

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“irregularities;” “illegal court order;), a district judge

(“[flalse statements;” “illegal Amendment to Judg-

ment... to cover-up the ‘doctored’ files and the pay-

offs made to cover up the fraud;”) and a clerk of

court (“disoriented, hysterical behavior”).

She proceeds with scathing accusations against First

Trust and those associated with it. She rails that First

Trust “breached their fiduciary duty,” “committed

perjury,” “employed perjury, deception, misrepresen-

tation and fraud to cover-up” assets and “committed

perjury.” She accuses an officer of First Trust of mak-

ing “thirteen false statements . . . to cover-up” prior

“illegal” activities of a lawyer for the estate, and

accuses a lawyer for First Trust of “making sixteen

false statements . . . to cover-up” such activities.

None of these vituperations are supported by any

references to the record. Thus, Conway’s presenta-

tion is lacking in evidence though lengthy in

vilification.

In the Matter of the Estates of Kjorvestad, 375 N.W.2d 160,

164 (N.D. 1985).

Vilification notwithstanding, the Supreme Court pro-

ceeded to a careful examination of the procedures fol-

lowed and actions taken by the successor personal

representative.

The reconstructed account for the administration of

Mrs. Conway and her sister, the collection of assets, the

accounting for assets and the compensation for First Trust

and its attorney were all reviewed and found not legally

wanting.

2. There is no Federal Question.

As contemplated by Rule 17, Sup.Ct.R., a writ of

certiorari will be granted only for special and important

reasons. One of these reasons would be when a state

court of last resort has decided a federal question in

conflict with the decision of another state or a federal

court of appeals. Another would be when a state court

has decided an important question of federal law which

is in conflict with a decision of this Court or which

should be settled by this Court.

The decisions of the North Dakota Supreme Court in

this case are simply interpretations of probate law under

the statutes and civil rules of North Dakota. The major

argument of Mrs. Conway revolves about whether pro-

cedures in the estates were governed by North Dakota

statutes in effect before or after July 1, 1975.

No federal question was ever presented for decision

by the Supreme Court of North Dakota.

There were three issues before the North Dakota

Supreme Court: (1) Were the allowances of attorneys’ fees

and personal representative’s fees clearly erroneous? (2)

May the county court allow costs of defending unsub-

stantiated disciplinary complaints as a charge against

Mrs. Conway’s share of the estates? (3) Was the appeal

frivolous, justifying an assessment of costs and fees

against Mrs. Conway?

3. Sanctions for Frivolous Pleading and Litigation are

Fully Justified.

If there is any cause for wonder about the history of

these estates it is not that the North Dakota Supreme

Court has applied extraordinary sanctions. Rather, the

wonder is that the Court has applied so few and such

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minor sanctions for litigation that has been, at least over

the past four years, totally repetitive, frivolous and full of

libelous allegations. Once the constraints of representa-

tion by a member of the bar were removed, Mrs. Conway

returned again and again to her basic premise, that her

sister and her sister’s attorneys had stolen from the

estates and everyone thereafter was covering up.

The Court proceeded under Rule 38 of N.D.R.

App.Proc., which provides:

If the court shall determine that an appeal is frivo-

lous, it may award just damages and single or double

costs to the appellee, including reasonable attorney

fees.

This rule follows closely Rule 38, Fed.R.App.P., applica-

ble to the federal courts of appeal.

Recognizing the burden of frivolous litigation in an

already overburdened judicial system, the Federal Civil

Rules have increased the standards to be applied and the

sanctions to be imposed. Under the most recent

amendments:

The signature of an attorney or party constitutes a

certificate by the signer that the signer has read the

pleading, motion, or other paper; that to the best of

the signer’s knowledge, information, and belief for-

med after reasonable inquiry it is well grounded in

fact and is warranted by existing law or a good faith

argument for the extension, modification, or reversal

of existing law, and that it is not interposed for any

improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of

litigation. If a pleading, motion or other paper is not

signed, it shall be stricken unless it is signed

promptly after the omission is called to the attention

of the pleader or movant. If a pleading, motion, or

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other paper is signed in violation of this rule, the

court, upon motion or upon its own initiative, shall

impose upon the person who signed it, a represented

party, or both, an appropriate sanction, which may

include an order to pay to the other party or parties

the amount of the reasonable expenses incurred

because of the filing of the pleading, motion, or other

paper, including a reasonable attorney’s fee.

Rule 11, Fed.R.Civ.P.

These directives are consistent with sanctions for

failing to make discovery. See Rule 37(b)(2), Fed.R.Civ.P.

It is unlikely that a federal district court judge would

have exercised the extreme patience displayed by the

North Dakota Supreme Court.

4. This Extensively Litigated Probate Proceeding Pre-

sents no Equal Protection or Due Process Violation.

The equal protection clause of the Fourteenth

Amendment does not assure uniformity of judicial deci-

sions or immunity from judicial error. Beck v. Washington,

369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). Mrs.

Conway’s claims of error in rulings by the County Court

of Nelson County, as reviewed by the North Dakota

Supreme Court, present matters well within the sound

discretion of those judicial bodies.

Whatever procedures are fair, what state process is

constitutionally due, what distinctions are consistent

with equal protection, all depend on the particular situa-

tion presented. Cohen v. Hulen, 366 U.S. 117, 81 S.Ct. 954,

6 L.Ed. 156 (1961).

The Uniform Probate Code, as adopted in North

Dakota and applied in these estates, is a product of the

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respected National Conference of Commissioners on Uni-

form State Laws and has been adopted in at least sixteen

states. Uniform Probate Code (U.L.A.), p.1 (1988 Supp.).

It is far from an aberrant or illconceived piece of

legislation.

The Constitution commits to the states the power to

control administration of their citizens’ estates. Labine v.

Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971);

American Trust Co., Inc. v. South Carolina State Bd. of Bank

Control, 381 FSupp. 313 (D.S.C. 1974).

It seems questionable that the “excessive fines” pro-

vision of the Eighth Amendment is applicable to the

states through the Fourteenth Amendment. See Collins v.

Johnston, 237 U.S. 502, 35 S.Ct. 649, 59 L.Ed 1071 (1915);

Annot. 18 L.Ed.2d 1388, 1412. However, the same consid-

erations of judicial discretion under the due process and

equal protection clauses would apply. In addition, that

provision is addressed to the criminal jurisdiction of the

courts rather than the civil proceedings applicable here.

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CONCLUSION

The petition for writ of certiorari to the North Dakota

Supreme Court presents an interesting case study in how

the judicial process in a probate proceeding may be

extended, delayed, complicated and made expensive by a

determined litigant with substantial resources. This case

has already clogged the calendar of the Supreme Court of

North Dakota for eleven years. It has no place on the

calendar of the Supreme Court of the United States.

Dated: November 14, 1988.

Respectfully submitted,

J. Putte JOHNSON

(Counsel of Record)

YurLt, Wop, JOHNSON

& Feber, P.C.

414 Gate City Building

P.O. Box 1680

Fargo, ND 58107

(701) 235-5515

Attorneys for Respondent