Opposition Brief — Harlan v. Committee on Professional Ethics & Conduct

Supreme Court, U.S.

FILED

DEC 8 1988

JOSEPH F. SPANIOL, JR,

No. 88-769

In The

Supreme Court of the Unit

October Term, 1988

-.

.

JANE HARLAN,

Petitioner,

vs.

THE COMMITTEE ON PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA STATE BAR ASSOCIATION,

and its individual members thereof, Michael H.

Figenshaw, John J. Greer, James L. Tyler, Karen E. Shaff,

Marie Prince-Cohen, D. Carlton Shull, William C. Davison,

Norman G. Bastemeyer, Mary Louise Petersen, and Car-

olyn Sloan, in their individual and official capacities;

LARRY JACKSON, Deputy Commissioner of the lowa

Department of Human Services, and GORDON E. ALLEN,

Special Assistant Iowa Attorney General, in their individ-

ual and official capacities,

Respondents.

..

yg

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

—_ '

-

THomas J. MILLER

Attorney General of lowa

*ELIzaABETH M. OseENBAUGH

Deputy Attorney General

ELEANOR E. LYNN

Assistant Attorney General

Hoover State Office Building

Des Moines, -lowa 50319

(515) 281-8760

Attorneys For Respondents

Larry Jackson and Gordon E. Allen

*Counsel of Record

QUESTIONS PRESENTED

1. Are the federal courts without subject matter

jurisdiction to consider the issues raised by Petitioner

Harlan’s complaint?

2. Did the Court of Appeals err in holding that

Petitioner Harlan failed to preserve any objection to the

District Court holding that Respondents are immune?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... .ssccoccesscostscesccac i

TABLE OF CONTENTS. .......:cecsssesccessccsecs ii

TABLE OF AUTHORITIES. ....jeccccscesscoccnsces iii

OPINIONS BELOW ......2...s:ssecteseususeeusecuen 2

JURISDICTION. ....::55s00s0sh00eueeneeeeeeenenees 2

PROVISIONS OF RULES INVOW ER? scccscncevcens 2

STATEMENT OF THE CASE. ....cccccsccssscsecces 3

REASONS FOR DENYING THE WRIT............. 5

I. THERE IS NO VALID REASON TO GRANT

THE WRIT OF CERTIORARE .....ccccscsescss 5

II. THE DISTRICT COURT DECISIONS CON-

FORMED TO SETTLED LAW IN HOLDING

THAT THE FEDERAL COURTS LACKED SUB-

JECT MATTER JURISDICTION OVER THIS

CHALLENGE TO A STATE ATTORNEY DISCI-

PLINARY PROCEEDINGS ..ccccccsocncasnscece 8

III. THE DECISIONS BELOW DO NOT RAISE THE

QUESTION WHETHER THE COMPLAINT

STATES A CAUSE OF ACTION UNDER 42

U.S.C. § 1983... ::.c507 cee 12

CONCLUSION ......s<siseess eens eee eaeeeeee eee 13

TABLE OF AUTHORITIES

Pages

I. JupictaL Decisions

Anonymous v. Association of the Bar of City of New

York, 515 F.2d 427 (2d Cir. 1975), cert. denied 423

U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1976) ....... 10

Anonymous ]. v. Bar Association of Erie County, 515

F.2d 435 (2d Cir. 1975), cert. denied 423 U.S. 840,

PO Wa Fie GD Lees GD CIDE). 2 wo cece ccccccene 10

Borough v. Duluth, Missabe & Iron Range Ry. Co.,

762 F.2d 66, 68-69, n.1 (8th Cir. 1985).............. 6

Brown v. Board of Bar Examiners, 623 F.2d 605 (9th

EE ne re 11

Burford v. Sun Oil, 319 U.S. 315 (1943) .............. 10

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969)........ 7

Chicago Council of Lawyers v. Bauer, 522 F.2d 242

ca ey wae da Wse desk een dneveene ness 12

Committee on Professional Ethics and Conduct of the

Iowa State Bar Association v. Michelson, 345

BE 9

Czura v. Supreme Court of South Carolina, 813 F.2d

cen cineshaeekssuhaeeteseeeheson 12

DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40

nk 65h 655466 ecneeeeneccuceeesex 8

Delta Airlines v. August, 450 U.S. 346, 362 (1981)...... 7

District of Columbia Court of Appeals v. Feldman, 460

See Sg Uy SLND CEOED oc cnceccecvinceseessn passim

Doe v. Pringle, 550 F.2d 596, 597 (10th Cir. 1976)..... 11

iv

TABLE OF AUTHORITIES-Continued

Pages

Erdmann v. Stevens, 458 F.2d 1205 (2d Cir.), cert.

denied 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d 147

I en Are ea ra ee i arn se agg 10

Gipson v. New Jersey, 558 F.2d 701 (3rd Cir. 1977) ....10

Hensler v. District Four Grievance Committee, 790

Fe SO GO GE. TDs chao cdvctnnscscceseseasees 10

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) ...... 12

Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423 (1982).......... 9, 10, 11

Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60

Ne EUS c ode scanhendannacnssesucawheres 10

Ohio Civil Rights Commission v. Dayton Christian

Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91

L.Ed.2d 512 (1986), citing Middlesex, 457 U.S.

SRS puudun deat. secse kd ivanbabaeceneedenekadausaans 9

Pennzoil v. Texaco, Inc., 481 U.S. __, 107 S.Ct. 1519,

Oe Se OE boos chk ckkb ces deaeceseesubesue 10

Ronwin v. Dunham, 818 F.2d 675 (8th Cir. 1987)...... 10

Rubek v. Barnhart, 814 F.2d 1283 (8th Cir. 1987)....... 7

Worldwide Church of God v. McNair, 805 F.2d 888

ee ee ES kc bade bade bees ctkecse ees eaen 12

Younger v. Harris, 401 US. 37 (1971).......22.c0c000. 10

II]. FEDERAL STATUTES AND RULES

ee en, SP LG Wat cabo Aeeeee eek naed eee eener es 2

ee aes ee a avandandsedeeeccsucsaedediaies 4,5, 12

TABLE OF AUTHORITIES-Continued

Pages

Rod. Bh. Ame Fi SOs 600t0 ss cknssaesnneliogerciee 6

PO: We A Ry ee aks na oan ensaupeeukeaeeeen ee 6

Ill. lowa Atrorney DiscipLinAry RULES

ee PPT eee re eT ee rere rT ry ry rr 2

eae Diem. GR. Te, Fisk s cnn ckecadasasaansbaneeeeen 4

Sowa Sup. C2. Bh. DIU os ccevickeccsrvseneyaaews 4

No. 88-769

.

vr

In The

Supreme Court of the United States

October Term, 1988

—_ *

—_

JANE HARLAN,

Petitioner,

vs.

THE COMMITTEE ON PROFESSIONAL ETHICS AND

CONDUCT OF THE IOWA STATE BAR ASSOCIATION,

and its individual members thereof, Michael H.

Figenshaw, John J. Greer, James L. Tyler, Karen E. Shaff,

Marie Prince-Cohen, D. Carlton Shull, William C.

Davison, Norman G. Bastemeyer, Mary Louise Petersen,

and Carolyn Sloan, in their individual and official capaci-

ties; LARRY JACKSON, Deputy Commissioner of the

lowa Department of Human Services, and GORDON E.

ALLEN, Special Assistant lowa Attorney General, in their

individual and official capacities,

Respondents.

..

-

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

.

vr

The Respondents Larry Jackson and Gordon E. Allen

respectfully oppose the Petition for Writ of Certiorari to

review the opinion and judgment of the United States

Court of Appeals for the Eighth Circuit entered in the

above-captioned case on August 12, 1988.

OPINIONS BELOW

Neither the opinion of the Court of Appeals nor the

opinion of the District Court has been reported. Both

opinions, however, are reproduced in the Appendix to

the Petition for Writ of Certiorari.

+.

-

JURISDICTION

The Petition for Writ of Certiorari invokes this

Court’s jurisdiction under 28 U.S.C. Section 1254.

+.

4

PROVISIONS OF RULES INVOLVED

lowa Sup. Ct. R. 118

Rules of the Grievance Commission of the

Supreme Court of lowa

Rules of Procedure of the Committee on Profes-

sional Ethics and Conduct of The Iowa State Bar

Association

These rules are set forth in the appendix to the brief

in opposition of Respondent, The Committee on Profes-

sional Ethics and Conduct of The Iowa State Bar

Association.

>

EO ——_

STATEMENT OF THE CASE

Petitioner Jane Harlan, an Iowa attorney, was

appointed guardian ad litem for five children involved in

a child-in-need-of-assistance proceeding. Respondent

Larry Jackson, as Deputy Commissioner, was the Iowa

Department of Human Services official ultimately

responsible for foster care placement.! Respondent Gor-

don E. Allen, as Deputy Attorney General for the State of

Iowa, was responsible for providing legal advice and

representation to Larry Jackson and the Iowa Department

of Human Services.

In the course of the performance of these functions,

Respondents Jackson and Allen filed an ethics complaint

against Petitioner Harlan with the Grievance Commission

of the lowa State Bar Association. The complaint alleged

that Petitioner Harlan had violated ethical proscriptions

by making extrajudicial statements concerning the pend-

ing proceedings and by releasing confidential informa-

tion. (Pet. App. 23-25) The complaint was investigated by

the Committee on Professional Ethics and Conduct. Peti-

tioner Harlan responded to the ethics complaint by

asserting a First Amendment defense. (Pet. App. 26-27)

The Committee rejected her claims, concluded she had

violated disciplinary rules, and sent her notice of its

recommendation of public reprimand. (Pet. App. 28-30)

The notice informed her that, if she failed to file an

exception to the recommendation within thirty days, the

' Larry Jackson has recently left State employment but

was employed by the lowa Department of Human Services at

all times relevant to the factual matters asserted by Petitioner

Harlan.

reprimand would be spread upon the public records of

the lowa Supreme Court. (Pet. App. 29-30) Had Petitioner

Harlan filed an exception, lowa Supreme Court Rule

118.3 provided that the reprimand would be stricken.?

(Resp. Committee’s App. I) Had Petitioner Harlan filed

an exception, no discipline could have been imposed

without full hearing before the Grievance Commission

and disposition by the lowa Supreme Court. lowa

Supreme Court Rules 118.3 to 118.11. (Resp. Committee’s

App. D

Petitioner Harlan did not file exceptions. Instead, she

filed this action in the United States District Court for the

Southern District of lowa against Allen and Jackson and

members of the Ethics Committee under 42 U.S.C. § 1983,

seeking declaratory and injunctive relief and $1,000,000

in damages, as well as attorney fees. (Pet. App. 17-22) On

October 15, 1987, the lowa Supreme Court issued an

Order of Public Reprimand as no exception had been

filed by Petitioner Harlan. (Pet. App. 46) Harlan then

filed a Petition for Writ of Certiorari in this Court asking

2 The lowa Supreme Court attorney disciplinary pro-

cedures are described in the Brief in Opposition filed herein by

Respondent Committee on Professional Ethics and Conduct of

the lowa State Bar Association. The appendices to that Brief in

Opposition [cited herein as Resp. Committee’s App.] contain

lowa Supreme Court Rule 118, the Rules of the lowa Supreme

Court Grievance Commission, and the Rules of the Committee

on Professional Ethics and Conduct of the lowa State Bar

Association.

for review of that order of public reprimand; that Petition

was not docketed because it was filed out of time.?

Meanwhile, the district court dismissed the § 1983

action for lack of subject matter jurisdiction and because

all of the defendants were absolutely immune. On appeal

to the Court of Appeals for the Eighth-Circuit, the only

issue Petitioner Harlan raised was whether the district

court had subject matter jurisdiction. (Appellant’s Brief in

the Court of Appeals at 4; Pet. App. 4) The Eighth Circuit

held that Petitioner Harlan’s failure to challenge the dis-

trict court’s holding that the defendants are absolutely

immune from liability was fatal to her appeal. (Pet. App.

4-5) Accordingly, the Eighth Circuit affirmed the district

court’s dismissal of the complaint. (Pet. App. 1-5) From

that affirmance, this Petition for Writ of Certiorari was

filed.

,™

7

REASONS FOR DENYING THE WRIT

I. THERE IS NO VALID REASON TO GRANT THE

WRIT OF CERTIORARI.

The Petition for Certiorari raises no important issue

which needs to be resolved by this Court. Petitioner

Harlan’s First Amendment arguments could not be

decided in this case. Neither the district court nor the

Eighth Circuit reached the merits, because dismissal

3 Letter from Joseph F. Spaniol, Jr., Clerk, Supreme Court

of the United States, to Robert E. Sutton, Esq., January 21, 1988,

concerning Harlan v. Committee on Professional Ethics.

resulted from lack of jurisdiction and the absolute immu-

nity of Respondents.

The district court granted the motion to dismiss filed

by Respondents Jackson and Allen on two different bases:

(1) lack of subject matter jurisdiction (Pet. App. 10-13);

and (2) the absolute immunity of Jackson and Allen from

liability for damages for filing the complaint and assist-

ing with the investigation of the disciplinary action

against Petitioner Harlan. (Pet. App. 13)

In this case Petitioner Harlan waived her right to

challenge the reprimand in the state court disciplinary

proceedings, permitted the order of reprimand to be

entered by her default, and then filed a Petition for Writ

of Certiorari in this Court after the statutory deadline.

Petitioner Harlan is foreclosed from challenging the rep-

rimand by failing to litigate these challenges in the state

proceedings and by failing to seek timely review by this

Court.

Petitioner Harlan also asks this Court to review the

Court of Appeals determination that she had waived any

error in the federal district court’s conclusion that

Respondents were immune.‘ (Petition, pp. 10-11). A deci-

sion that a party has not preserved an issue is hardly an

important question for this Court to consider. It is clear in

the Eighth Circuit that failure to brief an issue on appeal

waives that issue. Borough v. Duluth, Missabe & Iron Range

4 Petitioner Harlan did not present the immunity issue for

review either in her statement of issues required by Federal

Rule of Appellate Procedure 10(b)(3) or in her brief as required

by Federal Rule of Appellate Procedure 28(a)(2).

<<<

Ry. Co., 762 F.2d 66, 68-69, n.1 (8th Cir. 1985). See also

Rubek v. Barnhart, 814 F.2d 1283 (8th Cir. 1987). The merits

of the immunity issue are not properly before this Court.

A question which was not presented in the Court of

Appeals cannot properly be raised as a ground for review

in this Court. Delta Airlines v. August, 450 U.S. 346, 362

(1981); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). See

also District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 482, n.16 (1983).

There is no live case or controversy remaining. Peti-

tioner Harlan abandoned any challenge to the determina-

tion that the Respondents are immune from suit. She

cannot now challenge that determination, and the

Respondents’ immunity from suit independently pre-

cludes any cause of action for damages.

Any claim for injunctive relief is now moot. The

disciplinary proceedings against Petitioner Harlan have

been completely concluded and may not now be

reviewed by any court. Having taken no exception to the

reprimand as provided in lowa Supreme Court Rule 118.3

(Resp. Committee’s App. I), Petitioner Harlan was pub-

licly reprimanded by the lowa Supreme Court. (Pet. App.

46) The only judicial body vested with jurisdiction to

review that decision is this Court. Petitioner Harlan’s

failure to file a Petition for Writ of Certiorari in time

ended the jurisdiction of any court to review the circum-

stances of her disciplinary action, and the reprimand has

become a final and conclusive determination. District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482,

n.16 (1983).

As any request for injunctive relief is moot ard it is

now established that all Respondents are immune from

liability, there is no relief that the Court can afford that

would be of any practical effect. Thus, there is no case or

controversy over which the district court may exercise

jurisdiction. DeFunis v. Odegaard, 416 U.S. 312, 316, 94

S.Ct. 1704, 40 L.Ed.2d 164, 168 (1974).

This case falls squarely within the ambit of District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),

which held that a lower federal court has no subject-

matter jurisdiction over constitutional challenges which

are inextricably intertwined with a specific state attorney

licensing proceeding. There can be no colorable claim

that the courts below decided this case in conflict with

this Court’s decisions with regard to that jurisdictional

issue — the only relevant issue in this request for review.

Nor is there a split in the Circuit Courts of Appeals that

needs to be resolved by this Court.

This case is a straightforward instance of the district

court and, subsequently, the Eighth Circuit correctly

applying well-established law to arrive at the only juris-

dictionally correct result - dismissal of the complaint.

Il. THE DISTRICT COURT DECISIONS CON-

FORMED TO SETTLED LAW IN HOLDING THAT

THE FEDERAL COURTS LACKED SUBJECT MAT-

TER JURISDICTION OVER THIS CHALLENGE

TO A STATE ATTORNEY DISCIPLINARY

PROCEEDING.

The district court held it had no jurisdiction because

state court orders disciplining members of its bar “may

be reviewed only by the Supreme Court of the United

States on certiorari to the state court and not by means of

an original action in a lower federal court,” quoting Dis-

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

482, n.16 (1983). (Pet. App. 11)

Petitioner Harlan’s action in the federal district court

was an impermissible attempt to collaterally attack state

judicial proceedings. The district court properly decided

that it was without jurisdiction to review state court

decisions made in judicial proceedings, even when con-

stitutional claims are raised, as those claims are inextric-

ably intertwined with the lowa Supreme Court’s decision

in a judicial proceeding and an opportunity to raise and

litigate the constitutional issues was afforded in those

judicial proceedings. Feldman, 460 U.S. at 483-84, n.16.

(Pet. App. 11-13)

This Court has also held that “federal courts should

refrain from enjoining lawyer disciplinary proceedings

initiated by the state ethics committees if the proceedings

are within the appellate jurisdiction of the appropriate

State Supreme Court.”5 Ohio Civil Rights Commission v.

Dayton Christian Schools, Inc., 477 U.S. 619, 627, 106 S.Ct.

2718, 91 L.Ed.2d 512, 522 (1986), citing Middlesex, 457 U.S.

423. Attorney disciplinary proceedings in lowa are

clearly within the appellate jurisdiction of the Iowa

Sepreme Court. Committee on Professional Ethics and Con-

duct of the Iowa State Bar Association v. Michelson, 345

N.W.2d 112 (lowa 1984).

> At the time she filed the complaint, a timely exception to

the reprimand could still have been taken. Abstention by the

district court from exercising jurisdiction over the merits of the

complaint would have been appropriate at that juncture, due

(Continued on following page)

10

The district court has subject matter jurisdiction over

“general challenges to state bar rules, promulgated by

state courts in nonjudicial proceedings, which do not

require review of a final state-court judgment in a par-

ticular case.” Feldman, supra, at 486. Feldman clearly estab-

lishes, however, that a federal district court does not have

jurisdiction over “challenges to state court decisions in

particular cases arising out of judicial proceedings even if

those challenges allege that the state court’s action was

unconstitutional.” Id. Review of the latter decisions may

only be had in this Court. Feldman, supra. Indeed Peti-

tioner Harlan sought review here of the lowa Supreme

Court Order of Reprimand, but her petition for writ of

certiorari was dismissed as not timely. See note 3, supra.

(Continued from previous page)

to the pending state disciplinary proceedings within the juris-

diction of the lowa Supreme Court against the named plaintiff

in the district court action. See Middlesex County Ethics Commit-

tee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515,

73 L.Ed.2d 116 (1982); Younger v. Harris, 401 U.S. 37 (1971); see

also Pennzoil v. Texaco, Inc., 481 U.S. __, 107 S.Ct. 1519, 95

L.Ed.2d 1 (1987); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60

L.Ed.2d 994 (1979); Ronwin v. Dunham, 818 F.2d 675 (8th Cir.

1987); Hensler v. District Four Grievance Committee, 790 F.2d 290

(Sth Cir. 1986). Many courts have declared that the field of

state attorney discipline is one that is particularly well suited

to the principle of federal non-interference. See Gipson v. New

Jersey, 558 F.2d 701 (3rd Cir. 1977); Erdmann v. Stevens, 458 F.2d

1205 (2d Cir.), cert. denied 409 U.S. 889, 93 S.Ct. 126, 34 L.Ed.2d

147 (1972). See also Anonymous J. v. Bar Association of Erie

County, 515 F.2d 435 (2d Cir. 1975), cert. denied 423 U.S. 840, 96

S.Ct. 71, 46 L.Ed.2d 60 (1976); Anonymous v. Association of the

Bar of City of New York, 515 F.2d 427 (2d Cir. 1975), cert. denied

423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1976). Abstention

would also be appropriate in this context under principles

articulated in Burford v. Sun Oil, 319 U.S. 315 (1943).

11

Petitioner Harlan alleged that her actions were pro-

tected by the First Amendment and could not form the

basis for disciplinary action, and she alleged that the

disciplinary action was initiated in bad faith to retaliate

against her, etc. (Pet. App. 1, 17-22) She did mot claim

that the disciplinary rules under which she was repri-

manded were invalid and unconstitutional on their face.

Clearly, this action involved a challenge to a state-

court decision in a particular case arising out of judicial

proceedings and any constitutional claims raised by Peti-

tioner Harlan were inextricably intertwined with those

judicial proceedings. In Feldman, this Court noted:

If the constitutional claims presented to a United

States District Court are inextricably intertwined

with the state court’s denial in a judicial proceeding

of a particular plaintiff's application for admission to

the state bar, then the District Court is in essence

being called upon to review the state-court decision.

This the District Court may not do.

460 U.S. at 482, n.16. See also Brown v. Board of Bar Exam-

iners, 623 F.2d 605 (9th Cir. 1980); Doe v. Pringle, 550 F.2d

596, 597 (10th Cir. 1976). Nowhere in her complaint or

6 The Petitioner asserts in her Petition that the “bad faith”

exception articulated by this Court in Middlesex County Ethics

Committee v. Garden State Bar Association, 457 U.S. 423 (1982), a

case decided on the basis of abstention, is recognized by impli-

cation in footnote 16 of Feldman, 460 U.S. at 482. Petitioner’s

Brief p. 9. Respondents find no basis whatsoever for that

assertion in footnote 16. The test clearly articulated in Feldman

instead hinges on whether the constitutional claims are inex-

tricably intertwined with the state court’s application of its

rules to the circumstances of this Petitioner.

12

_

subsequent briefs did Petitioner Harlan make a constitu-

tional challenge to the disciplinary rule as promulgated

but rather challenged the application of the rule to her

particular factual circumstances, a decision over which the

district court lacked jurisdiction. Worldwide Church of God

v. McNair, 805 F.2d 888 (9th Cir. 1986). See also Czura v.

Supreme Court of South Carolina, 813 F.2d 644 (4th Cir.

1987).

Dismissal of Petitioner Harlan’s complaint was fully

consistent with this Court’s decisions. In an attempt to

suggest a conflict among the circuits, Petitioner Harlan

cites two decisions which the district court allegedly

ignored in holding that it lacked subject-matter jurisdic-

tion — Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979), and

Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir.

1975). (Pet. Br. at 10) Both cases were decided before

Feldman. Each was a facial challenge to bar rules; the

complaints did not arise from specific disciplinary pro-

ceedings. The Bauer case invoived federal, not state, court

rules. These cases are clearly not in conflict with the

decisions in this case.

Thus, the district court properly dismissed the com-

plaint for lack of subject matter jurisdiction.

Ill. THE DECISIONS BELOW DO NOT RAISE THE

QUESTION WHETHER THE COMPLAINT

STATES A CAUSE OF ACTION UNDER 42 U.S.C.

§ 1983.

The first question ostensibly presented for review is

whether the complaint states a cause of action under 42

U.S.C. § 1983. The Petition argues certain First Amend-

ment issues. However, these issues are not presented by

oO

Nerina

13

the decisions below. Neither the Eighth Circuit nor the

district court reached the issue whether the complaint

stated a cause of action under § 1983, so that issue is not

properly before this Court. (Pet. App. 1-5, 9-14)

Lp

vr

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

THOMAS J. MILLER

Attorney General of Iowa

Hoover State Office Building

Des Moines, Iowa 50319

Telephone: 515-281-5164

*ELIZABETH M. OsENBAUGH

Deputy Attorney General

ELEANOR E. LYNN

Assistant Attorney General

Hoover State Office Building

Des Moines, lowa 50319

Telephone: 515-281-8760

*(Counsel of Record)