# Opposition Brief — Tucker v. Northeast Savings

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0359%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1007

## Text

(>) 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0359%3A2. Public record. Not legal advice.