# Petition for Writ of Certiorari — Schucker v. Rockwood > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0358%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 488 U.S. 995 ## Text Supreme Court, U.S. 7 FILED SEP 24 1938 JOSEPH F sSParao.. UR. * CLERK IN THE SUPREME COURT OF THE UNITED STATES NO. OCTOBER TERM, 1988 ROBERT M. SCHUCKER, PETITIONER, V. TERRY G. ROCKWOOD; JAMES C. FUKUHARA; DEWAR, ROMIG & ROCKWOOD, INC.; ANNE D. McGOWAN; DeLAY, LAREDO & McGOWAN; MAURICE JOURDANE, RESPONDENTS. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AMENDED PETITION FOR WRIT OF CERTIORARI ROBERT M. SCHUCKER PETITIONER, PRO SE 7955 MAGNOLIA AVE. §18-B RIVERSIDE, CALIF. 92504 (714) 688-3044 QUESTIONS PRESENTED FOR REVIEW 1. May a State trial court judge be held liable for the deprivation of liberty and property resulting from his exercise of subject-matter jurisdiction during a period when he knew or should have known that such jurisdiction was statutorily stayed? 2. May an attorney be held liable for the deprivation of liberty and property result- ing from his bringing of matters before a State trial court during a period when the attorney knew or should have known that the trial court's subject-matter jurisdiction was statutorily stayed? PARTIES: The names of all parties to the proceeding in the United States Court of Appeals for the Ninth Circuit are contain- ed in the caption of the case in this Court. TABLE OF CONTENTS Questions Presented for Review Parties Table of Contents Table of Authorities Cited Opinions Delivered in the Courts Below Grounds for Jurisdiction Constitutional Provisions and Statutes Involved Statement of the Case Introduction Facts Basis for Original Federal Jurisdiction Argument Conclusions Appendix: 1. Opinion of the U. S. Court OO WN Ow of Appeals for the Ninth Circuit 2. Order and Judgment of the U. S. District Court, N. D. California 3. Selected Sections of the OCalif- ornia Code of Civil Procedure (CCP) CONSTITUTIONAL PROVISIONS: © > ~ tJ w/ Constitution of the United States, 7 Amendment XIV, Section 1 Title 11, . S. Code, section 362 22 U Title 28, U 1 S. Code, section 6 1254 ( Title 28 S d i 17 ritle » We - Code, section 13/32 bE Ts i L2 T C + . eo + ry Lit Cc & , “~ « W-* voce, Secu On / 1983 te Tan 7 Day] ao » . ar) Prenanran . 4eral “Mico is VU > ae AVUTUUL OS» 16 rile 12(h)(6 ) SS a ‘ \ J . a - . any “ \ preme VUCourt Rules, rule ifette ©) ~ a + a) ; ~ ~ . 5 TY ry valljiornia [Ge OL vilVlid Froe + 42 cedure, section 916 ~ Fre. ‘a! . s ar . ry california Code of Civil Pro- , = - O44 4 & te on cedure, sections Yi/.! ny 19 ( . 19 #9 97 9 and 11 ef Aldabe v. Aldabe (9th Cir. 1980) 22 616 F.2d 1089 Beresh v. Sovereign Life Ins. Co. of 18 Calif. (19794 92 CalApp 3d 547, 155 CalRptr 74 a _a_.taeaeeoeess y Bracey v. Gray (1945) 71 CalApp 2d 206, 18 162 P. 314, cert denied 327 U.S 809, 66 S.Ct. 961, 90 L.Ed. 1033 Bradley v. Fisher (1872) 13 Wall. 335, 6 20 L.Ed. 646 Estate of Hanley (1943) 23 Cal 2d 120, 18 142 P.2d 423 Ex parte Lukasik (1952) 108 CalApp 2d 18 438, 239 P.2d 492 Ex parte Queirolo 119 Cal 635 18 In re Marriage of Horowitz (1984) 159 18 CalApp 3d 377, 205 CalRptr 880 Lugar v. Edmondson Oil Co., Inc. (1982) , 45 . . , sUOe 44, 73 L.Ed.2d 482 McCarty v. McCarty (1981) 453 U.S. 210, 10 T01 S.Ct. 2728, 69 L.Ed.2d 589 San Francisco Savings Union v. Myers 18 (1887) 72 Cal 161, 13 P. 402 Sniadach v. Family Finance Corp. (1969) 6 395 U.S. 337, 89 S.Ct. 1820, 23 L.=d.2d 349 Stump v. Sparkman (1978) 453 U.S. 349, 6 98 S.Ct. 1099, 55 L.Ed.2d 331 Vosburg v. Vosburg (1902) 137 Cal 493, 18 68 P. 694 TEXTS AND TREATISES: Louisell & Hazard, Pleading & Pro- 18 cedure, State & ~ Fede 4th Ed ral ° Foundation Press (1979), 1097 SS OPINIONS DELIVERED IN THE COURTS BELOW Robert M. Schucker (hereinafter "Schucker"), petitioner here, appellant in the Court of Appeals, and plaintiff in the District Court, respectfully petitions this Court for a writ of certiorari to review the Opinion of the U. S. Court of Appeals for the Ninth Circuit, filed May 17, 1988 and amended June 29, 1988, in Schucker v. Rockwood, et al. appeal no. 86-2900. The matter was taken to the Court of Appeals on appeal from the Order and Judgment of the U. S. District Court for the Northern District of California, filed June 30, 1986 and entered July 1, 1986 (motion to alter or amend judgment denied, October 23, 1986), in Schucker v. Rockwood, et al., case no. C-86-20009-WAI. GROUNDS FOR JURISDICTION The jurisdiction of this Court is believed to be statutorily conferred by Title 28, U. S. Code, section 1254(1). Supreme Court Rule 17.1(c) refers. Schucker believes that the lower court decis- ions have been in conflict with applicable decisions of the Supreme Court, to wit: As to the former judge defendant, Stump v. Sparkman (1978) 453 U.S. 349, 98 S.Ct. 1099, 55 L.Ed. 2d 331, its antecedents, especially Bradley v. Fisher (1872) 13 Wall. 335, 20 L.Ed. 646, and its progeny; As to the attorney and law firm defendants, Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 and its progeny, especially Lugar v. Edmondson Oil Co.,Inc. (1982) 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482. CONSTITUTIONAL PROVISIONS A NVO .--(N)or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person with- in its jurisdiction the equal protection of the laws. - The Constitution of the United States of America, Amendment XIV, Section 1 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subject- ed, any citizen of the United States or other person within the jurisdiction there- of to the deprivation of any rights, priv- ileges, or immunities secured by the Con- stitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be consid- ered to be a statute of the District of Columbia. - Title 42, U. S. Code, section 1983 Except as provided in Secijons 917.1 through 917.9 and in Section 117ha-, the perfecting of an appeal stays proceedings in the trial court upon the judgment appealed from or Ithese exceptions are contained in the Appen- dix to this petition. None of the exceptions are relevant to the issues herein. Ietensemneinsnemiinatnemetil upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. - California Code of Civil Pro- cedure (hereinafter, "CCP"), section 916(a)= STATEMENT OF THE CASE INTRODUCTION Underlying the District Court case was a family law matter in the Superior Court of the State of California, County of Monterey. Schucker is a retired Regular commissioned officer of the United States Navy. The family law matter specifically concerned the question of Schucker's Navy retired pay as community property. At a point in time, Schucker's for- mer wife appealed a Superior Court order, denying her any part of his Navy retired pay 2tn effect at all times relevant, through June 30, 1983. Effective July 1, 1983, Sec- tion 117ha was renumbered to read Section Pe Py & 8 OOOO | as community property, to the California Court of Appeal. The subsequent District Court case was brought because of orders issued and actions taken by the Superior Court during the pendency of the appeal in the Court of Appeal. Schucker alleges that the Superior Court was proceeding under mere color-of-law at that time, having been statutorily divested of subject-matter jurisdiction by CCP section 916 so that such jurisdiction could be invested in the California Court of Appeal. FACTS Prior to June 26, 1981, a final judg- ment of dissolution of marriage was handed down in the Superior Court of California, County of Monterey, in a case in which Schucker and his former wife were parties. Incorporated in the final judgment by refer- ence was an interlocutory judgment which awarded Mrs Schucker a portion of Schucker's Navy retired pay as community property. On June 26, 1981, the U. S. Supreme Court handed down its decision in McCarty v. McCarty (1981) 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589, in which the Court held that Federal law precludes a state court from div- iding military retired pay pursuant to state community property laws. Based entirely upon McCarty, and with notice to his former wife, Schucker ceased paying her any part of his Navy retired pay as community property. Shortly thereafter, Schucker was ordered to appear in the Superior Court of Monterey County upon his former wife's application, and there to show cause why he should not be found in contempt for not continuing payments of his military retired pay to his former wife as community property. The matter was heard by the Hon. Harkjoon Paik, Judge of the Superior Court, on August 21, 1981. Judge Paik dismis- sed the Order to Show Cause re: Contempt (OSC), thus holding that Schucker was not in civil contempt of court for not continuing the payments. Schucker's former wife subsequently brought a "Motion for Distribution of Conm- munity Property" before the Monterey County Superior Court, in an attempt to achieve by motion that which had been denied her by OSC (i.e., court enforcement of the provision in the underlying divorce decrees which awarded her a part ef Schucker's Navy retired pay as community property). The matter has heard on November 27, 1981, by the Hon. Ralph M. Drum- mond, Judge of the Superior Court. Judge Drummond denied the motion by minute order entered November 27, 1981. Schucker was informed and believed and thereon, in his Federal complaint alleged, that the Minute Order of November 27, 1981 made the Navy-retired-pay-as-community-pro- perty portion of the interlocutory judgment unenforceable, effectively setting it aside. On January 6, 1982, Schucker's former wife, through her attorneys, filed a 11 Notice of Appeal, appealing the Superior Court's November 27, 1981 minute Order, deny- ing her motion, to the California Court of Appeal. Schucker was informed and believed and thereon, in his Federal complaint alleged, that the filing of the Notice of Appeal statutorily withdrew from the Superior Court subject-matter jurisdiction over "the order appealed from or upon the matters embraced therein or affected thereby", under CCP sec- tion 916. Notwithstanding the pendency of her appeal, on or about March 31, 1983, Mrs Schu- cker, through her attorneys, sought and obtained from the Monterey Superior Court, ex parte, an Order to Show Cause re: Contempt (OSC), requiring Schucker to appear in that court and there to show cause why he should not be held in contempt for not paying the Navy-retired-pay-as-community-property. The OSC came on for hearing before the Hon. Maurice Jourdane, then a judge of the 4n Superior Court, on May 6, 1983. Schucker made a special appearance for the express purpose of, and limited to, challenging the subject-matter jurisdiction of that court. The judge directed both sides to submit writ- ten points and authorities, which were sub- sequently submitted on May 20, 1983. By written decision dated June 2, 1983, Judge Jourdane found Schucker to be guilty of civil contempt of court for not complying with the Navy-retired-pay-as-community-pro- perty provisions of the interlocutory divorce decree, notwithstanding that those provisions had effectively been set aside by the court's November 27, 1981 minute order; that the November 27, 1981 minute order had been appealed; that the appeal was then pending; and that, because of the pendency of the appeal, the Superior Court then lacked appro- priate subject-matter jurisdiction and was, therefore, proceeding under mere color-of-law. On June 24, 1983, Judge Jourdane order- ed Schucker, by July 29, 1983, to recommence 2 13 Navy-retired-pay-as-community-property pay- ments to Mrs Schucker and to post an under- taking for alleged arrearages in such pay- ments. On July 29, 1983, in compliance with Judge Jourdane's order of June 24, 1983, Schu- cker recommenced the payments to his former wife. On July 29, 1983, Schucker advised Judge Jourdane that he was financially unable to post the undertaking ordered on June 24, 1983. Judge Jourdane thereupon found Schucker guilty of civil contempt of court for not post- ing the undertaking. The Superior Court con- tinued sentencing on this contempt conviction until after the Court of Appeal reported its decision on Mrs Schucker's appeal. On August 9, 1984, the California Court of Appeal returned the case to the Superior Court, by remittitur. Schucker was informed and believed and thereon, in his Federal complaint alleged, that the remittitur of August 9, 1984 dives- 4) ted the Court of Appeal of subject-matter jurisdiction and reinvested such jurisdiction in the Superior Court. On September 21, 1984, Judge Jourdane sentenced Schucker on the July 29, 1983 civil contempt of court conviction. The September 21, 1984 sentencing on the July 29, 1983 conviction ultimately resulted in Schucker's incarceration, on a bench warrant (warrant of attachment) issued by Judge Jourdane, in the Riverside County, California, Jail, and subsequently in the Monterey County, California, Jail. Schucker's final day of incarceration was December 31, 1984. On December 24, 1985, Schucker filed his complaint in the District Court civil rights case which underlies this petition. The gravamen of the complaint: The Monterey court proceeded in the clear absence of subject-matter jurisdiction while Schucker's former wife's appeal was pending in the California Court of Appeal, and thus pro- 45 ceeded under mere color-of-law, The depri- vation of his property and his liberty as a result of this color-of-law proceeding violated Schucker's due process and equal protection rights under the Fourteenth Amend- ment. Damages were sought from Mrs Schucker's attorneys and from former Judge Jourdane. The District Court dismissed Schucker's complaint under Fed. R. Civ. P. rule 12(b)(6) by Order entered July 1, 1986. The thrust of the Distrcit Court's Order as to the Califor- nia judge seemed to be that Judge Jourdane had simply made a mistake and exercised juris- diction which he did not have, and that juris- dictional mistakes do not give rise to 42 U.S. Code section 1983 actions. Further, that being on the winning side of a lawsuit does not make state actors of attorneys. Schucker's timely filed subsequent motion to alter or amend judgment was denied on October 23, 1986. Schucker appealed to the Court of Appeals for the Ninth Circuit, which affirmed the District Court by Opinion filed May 17, 16 1988 and amended June 29, 1988. In its amended opinion, the appellate court held, in substance, that the Monterey court had not proceeded in the "clear absence" of jurisdiction; thus, that the Monterey judge was protected by the judicial immunity doctrine. As had the District Court, the Court of Appeals stated that being on the winning side of a lawsuit does not make state actors_of lawyers. This petition followed. THE BASIS FOR ORIGINAL FEDERAL JURISDICTION The basis for Federal jurisdiction in the U. S. District Court for the Northern District of California was Title 28, U. S. Code, section 1343. ARGUMENT On November 27, 1981, the Superior 17 Court of Monterey County (Judge Drummond) denied Mrs Schucker's motion that she be paid a portion of Schucker's Navy reited pay as community property. On January 6, 1982, Mrs Schucker filed her Notice of Appeal. The California authorities make clear that a Notice of Appeal divests the trial court of subject-matter jurisdiction over the order appealed or the matters embraced therein or affected thereby. CCP section 916; San Fran- cisco Savings Union v. Myers (1887) 72 Cal 161, 163, 13 P. 402; Ex parte Queirolo 119 Cal 635; Vosburg v. Vosburg (1902) 137 Cal 493, 495, 68 P. 694; Estate of Hanley (1943) 23 Cal 2d 120, 142 P.2d 423; Bracey v. Gray (1945) 71 CalApp 24 206, 162 P.2d 314 cert denied 327 U.S. 809, 66 S.Ct. 961, 90 L.Ed. 10333; Ex parte Lukasik (1952) 108 CalApp 2d 438, 39 P.2d 492; Beresh v. Sovereign Life Ins. Co. of Calif. (1979) 92 CalApp 3d 547, 155 CalRptr 74; In re Marriage of Horowitz (1984) 159 CalApp 3d 547, 205 CalRptr 880; Louisell & Hazard, Pleadings & Procedure, State & Fed- eral, 4th Ed., Foundation Press (1979), at 1097. In Mrs Schucker's appeal, the matter "embraced therein or affected thereby" was Schucker's Navy retired pay as community property, past, present or future. The Superior Court had denied any part of it to Mrs Schucker as community property. In Stump v. Sparkman, ibid, this Court, relying largely on the post-Civil War case of Bradley v. Fisher, ibid, said, in relevant part: Judges ... are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction ... . Bradley v. Fisher, as discussed in Stump v. Sparkman, ibid, at 1104. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdic- tion over the subject-matter. Where there is clearly no jurisdiction over the subject matter any author- ity exercised is a usurped authority, and for the exercise of such author- ity, when the want of jurisdiction is known to the judge, no excuse is permissible. ... 7 rF added. ) Bradley, ibid, 351-352, as quoted in Stump, ibid, footnote at 1104. 19 | The doctrine of judicial immunity ... allows a judicial officer, in the exer- cise of the authority vested in him to be free (of) ... fear of suit. (Emphasis added.) Bradley, ibid, in Stump, ibid, 1108. But the conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity. (Justice Stewart's dissent in) Stump, ibid, 1110. It is Schucker's belief that the fact that the Monterey court was without subject- matter jurisdiction during the 1982-1984 pen- dency of Mrs Schucker's appeal is without substantial controversy. Nevertheless, both the District Court and the Court of Appeals found that such jurisdiction was not "clearly absent", the standard enunciated in Bradley and Stump, necessary to pierce the judicial immunity doctrine. The District Court said, in effect, that a State trial judge should not be held liable for making a mistaken jurisdictional call. But note that Schucker's complaint never alleged a mistake, or negli- gent jurisdictional decision, by then-Judge 20 Jourdane. In approximately a dozen differ- ent places in his complaint, Schucker alleged that Judge Jourdane's decision to exercise subject-matter jurisdiction was taken with full knowledge of the fact that he was with- out such jurisdiction. Further, this case was dismissed at the pleadings stage, and without the introduction of evidence; thus, the District Court had nothing on which to base such a negligence determination, if that is what the District Court, indeed, did. Ninth Circuit's Opinion simply held that the Monterey court had not acted in the "clear absence" of jurisdiction. Under CCP section 916, the Monterey court's subject-matter jurisdiction was "stayed". Does such a stay of subject- matter jurisdiction work a "clear absence" of jurisdiction such that, under the Court's Stump decision, a judge who proceeds in a knowing violation of the statutory stay can be held liable for the Constitution- ally-protected rights his actions violate? 21 An analogy might be drawn between the present case and one in which a State trial ourt judge proceeds against a bankrupt debtor, knowing that he does so in the face of a Title 11, U. S. Code, section 362 stay. May the State trial judge proceed with impunity? Or does an 11 U.S.C. 362 stay place a State trial judge in the "clear absence" of juris- diction, so that, if he chooses to flaunt his power in the face of the stay, he can be held liable? And, if the judge cannot be held liable under these circumstances, what remedy does the bankrupt debtor have if a State trial judge chooses to violate a Section 362 stay, or an appellee have if a State trial judge chooses to take his property and his liberty in clear violation of a CCP section 916-type stay? Both the District Court and the Court of Appeals relied on Aldabe v. Aldabe (9th Cir. 1980) 616 F.2d 1089, to find that being on the winning side of a lawsuit does not make an attorney a "State actor" for the purposes of the Fourteenth Amendment. Schucker believes that both courts missed the point, This Court, in Lugar v. Edmond- son Oil, ibid, held that one who seeks and obtains the aid and assistance of State officials who, themselves, are acting under mere color-of-law, can be held liable, as a "State actor", for subsequent deprivations of Constitutionally-protected rights. The Aldabe decision is irrelevant to the present lawsuit because, in Aldabe, there apparently was no issue of subject- matter jurisdiction; thus, no issue of a court acting under mere color-of-law. Although the trial court, in Aldabe, might have made incorrect decisions based on improper actions of Aldabe's adversary's attorneys, at least the trial court had the requisite jurisdiction. In Schucker's case, the trial court did not have appro- priate subject-matter jurisdiction; it was Justice Stewart's "loose cannon". In Schucker's case, one or another 23 of Mrs Schucker's attorneys prepared and filed the 1981 motion which was denied; one or another prepared and filed the 1982 Notice of Appeal which divested the trial court of subject-matter jurisdiction; one or another of them sought and obtained the 1983 OSC which triggered-off the actions underlying the District Court lawsuit. 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NY 91 4 ¥ ‘array Y - ~Onir?ai roar TL tav x Pid / ie . 2a VA pt ae ere Lisi Sa oe oe ft = wv w/w Yc y 7 . xT — 2 TOT,reramMmanN tT _ ~> i wer aJhkh s aa © ? | v Asm FY wei @ (a) The perfecting of an appeal shall not stay enforcement of the judgment or order in cases not provided for in Sections 917.1 through 917.8 if the trial court, in its discretion, requires an undertaking and the undertaking is not given. The under- taking shall be in a sum fixed by the court; it shall be conditioned upon the performance of the judgment or order appealed from if the judgment or order is affirmed or the appeal is withdrewe or dismissed, and it shall provide that if the judgment or order appealed from or any part of it is affirmed, or the appeal is withdrawn or dismissed, the appellant will pay all damages which the re- spondent may sustain by reason of the stay in the enforcement of the judgment. (b) For the purpose of this section, "damages" means reasonable compensation for the loss of use of the money or property. Section 117.7. Execution of Judgments. No attachment may issue from the small claims division. The judgment may be enfor- ced in the manner provided in Title 9 (com- mencing with Section 680.010) of Part 2 and in Section 1174. However, enforcement of the judgment is automatically stayed, without the filing of a bond by the defendant, until the expiration of time for appeal and, if + an appeal is taken, until the appeal is determined. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0358%3A1. Public record. Not legal advice.