Opposition Brief — Tucker v. Northeast Savings

(>) NOV 28 1988

ET NO. 88-719 > iP.

DOCK 8) a

SUPREME COURT Rie

OF THE UNITED STATES

OCTOBER TERM 1988

STANLEY V. TUCKER,

Petitioner,

V.

NORTHEAST SAVINGS, F.A.,

ROBERT R. BASINE, DONNA GALLUZZO,

LORRAINE WHITEHOUSE d/b/a CAPITAL WEST

Respondents. _

On Petition For a Writ of Certiorari To The

United States Court of Appeals

For the Second Circuit

JOINT BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

For Respondents For Respondents Donna

Northeast Savings, F.A. Galluzzo and Lorraine

and Robert R. Basine: Whitehouse d/b/a

Capital West:

Corcoran, Mallin & Schatz & Schatz,

Aresco, P.C. Ribicoff & Kotkin _

One Commercial Plaza 90 State House Square

Hartford, CT 06103-3599 Hartford, CT 06103

Tel. (203) 520-5100 Tel. (203) 522-3234

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the

Second Circuit has decided this case in a way that is in conflict

with the decision of another federal court of appeals on the same

matter.

2. Whether the United States Court of Appeals for the

Second Circuit has decided an important question of federal

law which has not been settled by the United States Supreme

Court.

3. Whether the United States Court of Appeals for the

Second Circuit has decided an important question of federal

law in a way in conflict with applicable decisions of the United

States Supreme Court.

4. Whether The United States Court of Appeals for the

Second Circuit has fully considered and properly decided the

issue of whether the decisions of the Connecticut courts were

res judicata of the petitioner’s constitutional claims raised in his

Section 1983 action.

TABLE OF CONTENTS

QUESTIONS PIREDGIN 8 Mats «ccksecnecnvseseges

TABLE OF CURSE Oc. ds; ccssnecnssecpeeupanaen

TABLE OF AUTHORITIES............ :

STATEMENT OF THE CASE............

ARGU MENS 7 o.0: ac 5<scakeceeeneeeeieeeee

If.

IV.

The Second Circuit Has Decided This Case In

A Way That Is Consistent With The Decisions

Of Other Federal Courts On The Relevant

FEDS. oss cui

. The Second Circuit Has Not Decided

Important Questions of Federal Law Which

The United States Supreme Court Has Not

AMC... 5.0 Seco

The Second Circuit Has Not Decided This

Case In A Way That Is In Conflict With Any

Decisions Of The United States Supreme

PPP ee 8

The Second Circuit Has Fully Considered

And Properly Decided The Question of

Whether The Decision In The Supreme Court

of Connecticut Was Res Judicata Of The

Petitioner’s Constitutional Claims

CONCLUSION. .. ixaassst cheese terudoaeee

TABLE OF AUTHORITIES

CASES

Allen v. McCurry, 449 U.S.90 (1980).............. 7.9

Association Against Discrimination in

) Employment, Inc. v. City of Bridgeport, 710

EG BIND oa diccvacncchensscstacese. 6

Broadrick v. Oklahoma, 413 U.S. 60 (1983)....... 4

District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462.(1983)................... 4,6,8

Friarton Estates Corp. v. City of New York, 681

ed dacesboksescsdcccsens 7

Hartford Federal Savings & Loan Association v.

Tucker, 196 Conn. 172, cert. denied,

ss vs occ cnsec¥usecvscscsssnvess io

Karim-Panahi v. Los Angeles Police

Department, 839 F.2d 621 (9th Cir.

| a ee r

Linda R.S. v. Richard D., 410 U.S. 614 (1973)... 6

Migra v. Warner City School District Board of

: Education, 465 U.S. 75 (1983).................-. 4

‘ Penzoil Co. v. Texaco, Inc., 107 S. Ct. 1519

ee he oy cae cupvweusss’ 6

Rice v. Sioux City Memorial Park Cemetery,

ec cos eancantesiisessaseaas 4

Rooker v. Fidelity Trust Co., 263 U.S. 413

een tee dl ivaksyannesss<eedoceses 6

Tucker v. Hartford Federal Savings & Loan

Association, 474 U.S. 920 (1985). ............... |

Younger v. Harris, 401 U.S. 37 (1971)............. 6

STATUTES

a cak cas scissdedccesccenssacacesctess 4,5

EL od cezhesncesoadeousscecteas cance cs 9

STATEMENT OF THE CASE

This case arose from four foreclosure actions against the

petitioner brought in the Superior Court of Connecticut which

concluded in favor of Hartford Federal Savings & Loan

Association, corporate predecessor of appellee Northeast

Savings, F.A., in 1979. Respondent Robert R. Basine, an

attorney, represented Northeast Savings in the foreclosure

proceedings and in subsequent appeals in state courts. Some

of the properties involved were ultimately sold to respondents

Galluzzo and Whitehouse, but prior to any sale and following

the issuance of the foreclosure judgments, the Superior Court

appointed several receivers of rents. The petitioner, Stanley

Tucker, concedes that in fact he was present, was granted a

hearing, and voiced his objections, at the time of each

appointment. For this reason, on appeal the Supreme Court of

Connecticut held that the Superior Court’s rent receiver rules,

embodied in Connecticut Practice Book Sections 504 through

510, had accorded Mr. Tucker due process of law and therefore

were constitutional both as applied and facially. Hartford

Federal Savings & Loan Association v. Tucker, 196 Conn. 172,

177, cert. denied, 474 U.S. 920 (1985). Moreover, as to that

ruling, the United States Supreme Court denied certiorari.

Tucker v. Hartford Federal Savings & Loan Association, 474

U.S. 920 (1985).

Having exhausted the appellate procedures of both the state

and the federal judiciaries, Mr. Tucker filed this lawsuit in the

United States District Court for the District of Connecticut

under 42 U.S.C. Section 1983, again on the ground that the state

court’s rent receiver rules unconstitutionally denied him due

process of law,~and therefore were unconstitutional both as

applied and on their face. The respondents filed a Motion for

More Definite Statement and Motion to Strike portions of the

Complaint, both of which were granted by order dated August

31, 1987. After the petitioner filed an amended complaint

pursuant to that order, the defendants moved to dismiss the

action. By order dated December 15, 1987, Judge Peter C.

Dorsey granted the defendants’ Motions to Dismiss on the

grounds that the District Court lacked subject-matter

jurisdiction of the appellant's claims and that those claims were

res judicata. Ruling on Motion to Dismiss, Petitioner's

Appendix F, pp. F-4 - F-11.

The petitioner, however, appealed Judge Dorsey’s Ruling to

the United States Court of Appeals for the Second Circuit

(hereafter, “Second Circuit”). By order dated May 2, 1988, a

three-judge panel granted the respondents’ Joint Motion to

Dismiss and for Summary Affirmance “substantially for the

reasons stated in the Memorandum and Order of Judge Peter

C. Dorsey”. Second Circuit Order. The petitioner’s Petition for

Rehearing and Suggestion for Rehearing En Banc were denied

by the Second Circuit's Order dated July 5, 1988. Petitioner's

Appendix D. Finally, the petitioner filed his corrected Petition

for a Writ of Certiorari in the United States Supreme Court

on October 26, 1988, his initial Petition dated September 29,

1988 having been rejected for failure to comply with procedural

rules.

ARGUMENT

1. The Second Circuit Has Decided This Case In A Way that

is Consistent With The Decisions Of Other Federal Courts

on The Relevant Issues

The petitioner contends that the Second Circuit's dismissal

of his appeal runs counter to one case decided in the Ninth

Circuit and others decided in the District of Columbia Circuit.

This contention is false.

The Ninth Circuit case is Karim-Panahi v. Los Angeles Police

Department, 839 F.2d 621 (9th Cir. Feb. 16, 1988). In that case,

a pro se litigant appealed the dismissal of his amended

complaint, which was based in part on Section 1983. The

plaintiff had amended his original complaint after the district

court had granted the defendant’s motion to dismiss without

prejudice and instructed the plaintiff to make his complaint

shorter and more concise. The Ninth Circuit reversed the district

—.

court’s order of dismissal because the pro se plaintiff had

mistakenly eliminated from his amended complaint a portion

of the original complaint essential to his Section 1983 claim.

The appellate court found that the district court’s instructions

to the plaintiff regarding amendment of the Complaint were too

vague.

We do not, of course,,require the district court to act as legal

advisor to the plaintiff. However, the court must do more

than simply advise the pro se plaintiff that his complaint needs

to be shortened and more concise. . . .

ld. at 626.

The petitioner cites no District of Columbia Circuit cases on

point, but instead refers without specification to a news item

which supposedly chronicles such cases. This hardly meets the

standard of argument required to support a petition for

certiorari. Accordingly, the respondents are obliged to

distinguish the instant case only from Karim- Panahi.

And indeed, Karim-Panahi is easily distinguishable. The

holding in Karim-Panahi does not apply if the “deficiencies in

the section 1983 claims . . . cannot be cured by amendment”.

The deficiencies cited by Judge Dorsey — lack of subject-matter

jurisdiction, res judicata, and lack of standing — obviously

could not be so cured.

Moreover, the Karim-Panahi court found only that the pro

se litigant should have been given a chance to amend the

complaint to cure merely formal defects. In this case, Tucker

has already been given that chance, having filed a Second

Amended Complaint following a district court order granting

the defendants’ Motion to Strike and Motion for More Definite

Statement. Thus, the Ninth Circuit case applies only to a

situation in which a defendant has prematurely filed a Rule 12

(b) (6) motion to dismiss, when a motion to strike and/or

motion for more definite statement would have been

appropriate. It is plain in this case that such a situation did not

confront the district court below.

3

Mr. Tucker’s contention that the courts of appeals are in

conflict as to the applicable criterion for dismissing a pro se

litigant’s complaint, then, is wholly illusory. Certiorari should

be granted only where there is a real and embarrassing conflict

of authority between courts of appeals. Rice v. Sioux City

Memorial Park Cemetery, 399 U.S. 70 (1955). Accordingly, the

court should not grant certiorari in this case on the basis of

any alleged conflict among the courts of appeals.

ll. The Second Circuit Has Not Decided Important

Questions of Federal Law Which The United States

Supreme Court Has Not Addressed.

The Second Circuit’s order of dismissal incorporates by

reference the reasoning of the District Court’s ruling dismissing

the complaint. That ruling, in turn, is based on three legal

principles well established in federal law. These principles are

(1) subject-matter jurisdiction, (2) res judicata, and (3) standing.

Ruling on Motion to Dismiss, Petitioner’s Appendix F. See

Migra v. Warner City School District Board of Education, 465

U.S. 75 (1983) (state court decisions on constitutional issues are

res judicata of federal court decisions on those issues in Section

1983 actions); District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 482 (1983) (district court has no subject-

matter jurisdiction to review final judgment of a state court);

Broadrick v. Oklahoma, 413 U.S. 60 (1983) (litigant has no

standing to challenge constitutionality of state rule which was

constitutionally applied to that particular litigant).

The petitioner’s argument from cases concerning state court

or state bar rules is simply inapposite. The only case he cites

that even approaches relevance to the instant case is District

of Columbia Court of Appeals v. Feldman, supra, 460 U.S. 462

(1983). In that case, the Supreme Court held that federal district

courts have subject-matter jurisdiction over constitutional

challenges of rules promulgated by state courts in non-judicial

proceedings, such as the rules the petitioner challenges here,

only if they have not already have been challenged in state court

proceedings. 460 U.S. at 485. This ruling is not only consistent

with but is required by 28 U.S.C. Section 1738, which provides

4

that a state court judgment be given the “same full faith and

credit” in the federal courts as it would be given in the court

of the state rendering the judgment.

As district Judge Dorsey made quite plain, the petitioner has

| indeed already challenged the state court rent receiver rules in

all of the Connecticut courts having appropriate jurisdiction,

| which challenge culminated in Hartford Federal Savings &

| Loan v. Tucker, supra, 196 Conn. 172, cert. denied, 474 U.S.

920 (1985). Ruling on Motion to Dismiss, Petitioner’s Appendix

F, pp. F-4, F-7 - F-11.

It follows that the District Court in fact had no subject-matter

jurisdiction of Mr. Tucker’s present Section 1983 claim under

the clear precedent of this Court, and under 28 U.S.C. Section

1738. Accordingly, neither the District Court nor the Second

Circuit has rendered a decision on an issue which the United

States Supreme Court has not addressed.

IIl. The Second Circuit Has Not Decided This Case ina Way

That is in Conflict With Any Decisions of The United

States Supreme Court.

Mr. Tucker argues that the Second Circuit has acted contrary

to Supreme Court precedent on the matters of standing and

abstention. Mr. Tucker, once again, is palpably incorrect.

According to the petitioner, he was deprived of the value of

his property due to the Connecticut Superior Court’s judgments

of strict foreclosure, and therefore has standing to sue on the

basis of that court’s application of the rent receiver rules

pursuant to the judgments of foreclosure. This, obviously, is a

flagrant non sequitur, reflecting a mismatch of the injury and

its Cause.

The denial of due process allegedly visited on Mr. Tucker by

the application of the rent receiver rules did not cause the

deprivation of property which Mr. Tucker cites in support of

his standing. Rather, the prior foreclosure proceedings caused

that deprivation, but Mr. Tucker does not challenge the

constitutionality of those proceedings. Thus, the salient

requirement of standing established by the United States

5

Supreme Court — namely, a nexus between the injury and the

defendant’s alleged action — is missing here. E.g., Linda R.S.

v. Richard D., 410 U.S. 614 (1973). See also Association Against

Discrimination in Employment, Inc. v. City of Bridgeport, 710

F.2d 69, 73 \2d Cir. 1983) (“A litigant is not entitled to have

the court decide the merits of an issue he raises unless he can

show some basis for arguing that the challenged action has

caused him some cognizable injury.”).

Given this lack of a nexus between injury and the allegedly

unconstitutional action, the petitioner’s Section 1983 claim

amounts to a general or “facial” challenge to the rent receiver

rules, which is clearly prohibited in constitutional adjudication

on the strength of the precedent of this court proffered by Judge

Dorsey. Ruting on Motion to Dismiss, Petitioner’s Appendix

F, pp. F-11 - F-13.

Next, Mr. Tucker makes a classic “straw man” argument. To

wit, he asserts that Younger abstention is not applicable to this

case. The respondents are in complete agreement with this

assertion, and in fact have never argued that the Younger

doctrine did apply. Indeed, in their Joint Memorandum of Law

in Support of Motion to Dismiss and for Summary Affirmance

(hereafter, “Joint Memorandum”), they explicitly stated:

That [ Younger] doctrine is intended only to avoid the risk

of federal judicial interference with ongoing state proceed-

ings. As all state proceedings have concluded in the instant

case, Younger abstention is simply inapplicable. . . .

Joint Memorandum, p. 4 (emphasis in original).

Instead, the thrust of the respondents’ arguinent was that

while Younger abstention is a discretionary doctrine, the

stronger Rooker-Feldman doctrine operates mandatorily to

foreclose federal jurisdiction where, as here, state proceedings

on the same issue have been concluded, and review in the United

States Supreme Court either is available or has been denied.

Joint Memorandum, pp. 3-€. See Pennzoil Co. v. Texaco, Inc.,

107 S. Ct. IS19 (1987); District of Columbia Court of Appeals

v. Feldman, supra, 460 U.S. 462; Rooker v. Fidelity Trust Ce.,

263 U.S. 413 (1923). See also Younger v. Harris, 401 U.S. 37

6

_ en (De eae ee

(1971). This was precisely the holding of District Judge Dorsey,

which the Second Circuit endorsed. Ruling on Motion to

Dismiss, Petitioner’s Appendix F, pp. F-7 - F-I1.

The petitioner’s arguments as to both standing and

abstention, then, provide no basis for this Court to grant

certiorari.

IV. The Second Circuit Fully Considered And Properly

Decided The Question of Whether The Decision in The

Supreme Court of Connecticut Was Res Judicata of The

Petitioner's Constitutional Claims.

The petitioner’s final argument is that the Second Circuit and

District Court incorrectly upheld the respondents’ defense of

res judicata. Specifically, he claims that the state proceedings

and the federal proceeding were not identical as to the issues

or parties. In fact, the issues of both the as applied validity and

the facial validity of the rent receiver rules were fully litigated

in the state proceedings. While this Section 1983 claim and the

state proceedings may not be strictly identical in all of their

particulars, as Judge Dorsey noted, “{t]he prior state judgment

is preclusive as to all issues actually litigated in that action,

including the issue of whether the state procedures afforded

Tucker due process”. Ruling on Motion to Dismiss, p. 9,

footnote 4 (citing Friarton Estates Corp. v. City of New York,

681 F.2d 150, 158-59 (2d Cir. 1982) (Friendly, J.)).! See also

Allen v. McCurry, 449 U.S. 90 (1980) (state proceedings have

collateral estoppel effect on Section 1983 actions).

Mr. Tucker also seeks to distinguish his Section 1983 action

from the state proceedings on the basis of two District of

Connecticut cases, decided in 1983 after the pleadings in the

initial state lawsuit were closed, purportedly establishing a right

of a prospective defendant to be notified of any defense he or

she may have prior to a deprivation of property. He neglects

‘Footnote 4, containing the quoted language, is conveniently and

conspicuously omitted from the petitioner’s reproduction of Judge Dorsey’s

ruling in Appendix F of the Petition for a Writ of Certiorari. See Petitioner’s

Appendix F, p. F-11.

;

to add that Judge Dorsey squarely confronted this issue.

Specifically, Judge Dorsey noted that Mr. Tucker’s appeal to

the Supreme Court of Connecticut and corresponding petition

for certiorari to the United States Supreme Court were not

brought until 1985, so that the petitioner knew of his right to

notice of defenses at that time and could have litigated any

deficiency in the rent receiver rules relating to such notice in

the state proceedings. Ruling on Motion to Dismiss, p. 7,

footnote 3.2 Accordingly, District of Columbia Court of

Appeals v. Feldman, supra, 460 U.S. at 484 n.16, precludes

relitigation here of that issue as well as the issues outlined above.

Ruling on the Motion to Dismiss, Petitioner’s Appendix F, pp.

F-8 - F-9.

Thus, the courts below have fully considered the arguments

against the application of res judicata principles in this case, and

correctly decided that they were invalid.

*Mr. Tucker also selectively deleted this footnote from his Appendix F. See

Petitioner’s Appendix F, p. F-8.

CONCLUSION

The District Court’s decision in this case, adopted by the

Second Circuit, is not in conflict with any of the decisions of

the Second Circuit itself, other courts of appeals, or the United

States Supreme Court. Further, that decision is in fact based

on clear and settled Supreme Court precedent, and therefore

does not call for clarification, express approval, or elaboration

by the United States Supreme Court. See generally Sup. Ct.

R. 17. Moreover, the result reached by the District Court is not

merely technically well-founded in constitutional law; it is also

eminently fair. It is beyond question that the petitioner was

accorded a full and fair opportunity to litigate in state court

and by petition for certiorari the constitutional claims that he

has raised yet again in the instant case.

Finally, as a matter of sound judicial administration and

policy, it would be imprudent to change long-standing federal

law so as to make 42 U.S.C. Section 1983 authority for collateral

attack on state court decisions and on denials of petitions for

certiorari, as the petitioner seeks to do here. Were the Court

to do this, the process of vindicating individual rights in the

federal courts would be potentially interminable, and the

competence of state courts to adjudicate federal rights under

“our federalism” severely and perhaps irreparably degraded. See

Allen v. McCurry, supra, 449 U.S. 90.

For these reasons, the respondents respectfully submit that

the Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

RESPONDENTS, NORTHEAST SAVINGS,

F. A. and ROBERT R. BASINE,

BY __ _ ee — a

CHARLES F. CORCORAN, Ill, ESQ.

Corcoran, Mallin & Aresco, P.C.

One Commercial Plaza

Hartford, CT 06103-3599

Tel. (203) 520-5100

RESPONDENTS, DONNA GALLUZZO

and LORRAINE WHITEHOUSE

d/b/a CAPITAL WEST

2) speeeaiaiiantertn

Il. MILTON WIDEM, ESQ.

Schatz & Schatz, Ribicoff & Kotkin

90 State House Square

Hartford, CT 06103

Tel. (203) 522-3234

10