# Opposition Brief — Tucker v. Connecticut National Bank

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1082

## Text

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44 34 AS

1989

No. 88-1277 CLERK

JOSEPH F. SPANIOL, JR.

——

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

-

STANLEY V. TUCKER, 2
Petitioner,

CONNECTICUT NATIONAL BANK, NEIL E. ATLAS, BOURKE G.
SPELLACY, and UPDIKE, KELLY & SPELLACY, P.C.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

UPDIKE, KELLY & SPELLACY, P.C.
Attorneys for Respondents

One State Street

Hartford, Connecticut 06103

(203) 548-2600

BOURKE G. SPELLACY, ESQ.
KAREN P. BLADO, EsqQ.*
MORTON H. LIBBEY, JR., ESQ.

* Counsel of Record

‘i mee s
Eek tao

leva

QUESTIONS PRESENTED FOR REVIEW

1. Does the United States District Court for the District of
Connecticut have subject matter jurisdiction to review the final
decision of the Connecticut Supreme Court?

2. Does the petitioner have standing to challenge the facial
validity of rent receivership court rules when the complaint
states that petitioner no longer owns the property which could
be exposed to the rent receivership rules?

3. When the court concludes that plaintiff lacks standing and
the court has no subject matter jurisdiction over plaintiff’s
claims, must the court offer to let the plaintiff amend his com-
plaint?*

* The respondents do not consider the petitioner’s first two issues to
be properly before this Court because neither the District Court nor
the Court of Appeals reached the substantive questions of whether
Tucker had any defenses of which he had no notice when the Connecti-
cut Superior Court appointed a rent receiver and of whether Connecti-
cut Practice Book §§ 504-510 are violative of due process on their face.

TABLE OF CONTENTS

PAGE
~ QUESTIONS PRESENTED FOR REVIEW .......... i
TABLE OF ALITHQQIT es oo cnn iv
LOWER COURT CITATIONS ..< Jo Vili
CONSTITUTIONAL PROVISIONS, STATUTES AND
UES. «coc nsnctascaseceeee Vili
STATEMENT OF THE BACT. «oe ewe ok 2
STATEMENT OF THE CASE. ....2.i: 65005. ek 3
SUMMARY OF ARGUMENT ......<.4..... 2 4
ARGUMENT «os ixs0kecuseune eee 6
I. TUCKER HAS NOT PRESENTED SPECIAL
AND IMPORTANT REASONS SUFFICIENT
TO WARRANT THIS COURT’S REVIEW OF
HES CARS és skcecdase tees eee ee 6
A. The Second Circuit Decision Does Not Con-
flict with Otiner Civemlis ......ccccccccces 8
B. The Second Circuit Decision Does Not Con-
flict with the Connecticut Supreme Court. . 10

C. The Lower Court Decisions Were Ordinary 1]
D. No Federal Statute Is In Issue............ 12

II. THE PETITIONER HAS FULLY LITI-
GATED THE CONSTITUTIONALITY OF
CONNECTICUT PRACTICE BOOK SEC-
TONS SOG-SID 5.05.50 oak ine eee eae ees 13

ili
PAGE

Ill. THE ROOKER-FELDMAN ABSTENTION
DOCTRINE PRECLUDED SUBJECT MAT-
TER JURISDICTION TO THE UNITED
STATES DISTRICT COURT ..........-++-- 17

CONCLUSION 2. ccc cc cc cc ccscecccsssccccccseceee 21

iv

TABLE OF AUTHORITIES

Cases: PAGE

106 Mile Transport Associates v. Koch, 656 F. Supp.

ee a a TE ook bac adcbe bh edsbedeaunias 16
Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66

See SE bs 5 5 yd oad eee Cakan de Wks eckee 15
Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82

iE ands bah ened asdeneekeidee ees 16

American Disposal Services, Inc. v. O’Brien, 1988 U.S.
App. LEXIS 1805, slip opinion, p. 8 (2d Cir. Feb. 8,

AAR eRe a heya ene ee UAE Re PRD 19
Burritt Mut. Sav. Bank of New Britain v. Tucker, 183
CO, Fie See Pe FP CUED kn ieee dda nseciecias y

City of Hartford v. Stanley Tucker, et al., 174 Conn.
Fale, Pe PE BE EO 6 ob cd be ke de0ceccecdndanes 9

Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195
CEC cuekeeapeucns cheese Us dvAN eases eben Kann ne 14

District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)... .12, 17,
18, 19, 20

Fermont Division v. Smith, 178 Conn. 393, 423 A.2d 80
Ss en a aud aE SO nae een ae 13

Friarton Estates Corp. v. City of New York, 681 F.2d
of fe - Pe Srerr re eee rr ere er 14, 15

Ham v. Smith, 653 F.2d 628 (D.C. Cir. 1981)......... 8

Hartford Federal Savings & Loan Ass’n v. Tucker, 181
Comes. GT, SO A.B LEO CEO oka viens ewevesces 9

PAGE

Hartford Federal Savings & Loan Ass’n v. Tucker, 196

Conn. 172, 491 A.2d 1084, cert. denied, 474 U.S. 920,
106 S.Ct. 250, 88 L.Ed.2d 258 (1985) ............ 5,9, 10
a eg 8

Hartford National Bank & Trust Co. v. Tucker, 178
Conn. 472, 423 A.2d 141 (1979), cert. denied,'445 U.S.
904, 100 S.Ct. 1079, 63 L.Ed.2d 319 (1980)
CPU OE sid dnd io weeny se eebert Lee pe So

Hartford National Bank & Trust Co. v. Tucker, 181

Conn. 296, 435 A.2d 350, cert. denied, 449 U.S. 956,
101 S.Ct. 363, 66 L.Ed.2d 1211 (1980) (Tucker II)... 3, 9,
12, 17

Hartford National Bank & Trust Co. v. Tucker, 195
Conn. 218, 487 A.2d 528, cert. denied, 474 U.S. 845,
106 S.Ct. 135, 88 L.Ed.2d 111 (1985) (Tucker Ill). ..passim

Hartford National Bank and Trust Co. v. Tucker, 174
Coun. 199, 376 A268 WTP IGT) os ccecectieivesics 2

Hartford National Bank and Trust Co. v. Tucker, No.
25761 (Jud. Dist. Litchfield), aff’d, 172 Conn. 675,
364 A.2d 643 (1976), cert. denied, 430 U.S. 932, 97

5.02. S554, Si Ee Fl COP ce cc aseawses casas 2
Hudson v. Harvey, 412 F.2d 1091 (D.C. Cir. 1968).... 9
Husti v. Zuckerman Property Enterprises Ltd., 199

Com. 557, See Pie Cae Ce ic en bea teanes cea 1]
Iowa Central Ry. Co. v. Iowa, 160 U.S. 389, 16 S.Ct.

364, 4B 1 et Ce ok dé ndao cd buncdvianeeeoes 14
Karim-Panahi v. Los Angeles Police Department, 839

se gyi, fe me. | Peper rrreperr ry err rrr rr 8
Mechanics Sav. Bank v. Tucker, 178 Conn. 640, 425

pw Be ee, ee ee Perm r rrr ret 9

slits

vi

PAGE
Migra v. Warren City School District Board of Educa-
tion, 465 U.S. 75, 104S.Ct. 892, 79 L.Ed.2d 56 (1983),
aft"g. 103 F.2d S64 Giths Cir. 19RD). onc ccctccccccces 15
Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70
SOR, Gz, SO EO: GS Cee hcvccae use ee iceeeens 15

Nelson v. Regan, 560 F. Supp. 1101 (D. Conn. 1983),
aff’d on other grounds, 731 F.2d 105 (2d Cir.), cert.
denied, 469 U.S. 853, 105 S.Ct. 175, 83 L.Ed.2d 110
(IDS) on vacccneccsususas vases beds eee 15, 16

Northeast Bancorp, Inc. v. Woolf, 576 F. Supp. 1225,
(D. Conn. 1983), aff’d, 742 F.2d 1439 (2d Cir. 1984) 17

Rooker v. Fidelity Trust Company, 263 U.S. 413, 44
SCR, AD, GS Le Se (i os oda sk cwacdennas 18, 19, 20

Silver v. Kingston Realty Corp., 114 Conn. 349, 158 A.
SOP CIGEED 6 600 n 6 8.000640eks cekeeneeteaeaeee 16

Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133 (2d Cir.
1986), rev’d on other grounds, 481 U.S. 1, 107 S.Ct.
1539, OS Le 8 Glee sae ckecseseesesannel 18, 19, 20

Tucker v. American Insurance Company, 3 Conn. App.
397, 488 A.2d 1278, cert. dismissed, 196 Conn. 802
(IDES) occcdiecscecdeesnacnebebeusdnled deuce 10

Tucker v. Connecticut Ins. Placement Facility, 192
Comm. 663, 473. A. Tae Cee bod cash en seaeiens )

Tucker v. Helco, 13 Conn. App. 825, 539 A.2d 148, cert.
denied, 207 Conn. 811, 541 A.2d 1241 (1988) ....... 10

Tucker v. Northeast Savings, F.A., 675 F. Supp. 763 (D.
Conn. 1987), summarily affirmed, 849 F.2d 1468 (2d
Cir. 1988), petition for cert. filed, No. 88-719 (U.S.
Now. 7, FOGG) sis000 cc keccuee vec uachastanascenes 4,7, 16

Vii

PAGE

Tucker v. Pinney, 8 Conn. L. Trib. No. 51 p.15 (1982)
aff’d 3 Conn. App. 678, 490 A.2d 1032, cert. denied,

197 Conn. 804, 499 A.2d 56 (1985) ................ 10
United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588

EE obs ck'hs Cah ce eu chues Fade deaeuedneenaahoeees 13
Williams v. Robinson, 16 Conn. 517 (1844)........... 16
Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d

PP Gees uv obacudccu sav adeereceseadeaananoaes 19, 20

Statutes and Rules:

yr gia Fol Be | | OPPO Per T Er eT rr Teer rrr ey er 6
Be Ws OEE ec cctdceccaccnsetenesiuesevaiuexs 18, 19
OF Ua as 0 BOO ob nk occ cb ncn dcctisvencscusesssss 14, 17
ee a Ss a Bs pebesceeaneuekecnnsebweewas e* 3, 8, 11
te Gl re a aonb adcnnnnenesckececnideseerann 9,11
United States Supreme Court Rule 17.1.......... 5, 6, 11, 12

Connecticut Practice Book §§ 504-510 ............... passim

Vili

LOWER COURT CITATIONS

Stanley V. Tucker v. Connecticut National Bank, et al., Civ.
No. H-87-635 (AHN) (April 23, 1988)

Stanley V. Tucker v. Connecticut National Bank, et al., No. 88-
7590 (2d Cir. Nov. 2, 1988)

“It is hereby ordered that the motion [to dismiss and for
summary affirmance] be and it hereby is granted to the extent
of affirming the judgment of the district court.’’

CONSTITUTIONAL PROVISIONS, STATUTES
AND RULES

Supreme Court Rule 17.1

See text at page 6 of this brief in opposition where Rule is
fully reproduced.
28 U.S.C. § 1254(1)

Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition of
judgment or decree.

28 U.S.C. § 1257

Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court as follows:

(1) By appeal, where is drawn in question the validity of a
treaty or statute of the United States and the decision is against
its validity.

(2) By appeal, where is drawn in question the validity of a
statute of any state on the ground of its being repugnant to the

Constitution, treaties or laws of the United States, and the deci-
sion is in favor of its validity.

(3) By writ of certiorari, where the validity of a treaty or stat-
ute of the United States is drawn in question or where the valid-
ity of a State statute is drawn in question on the ground of its
being repugnant to the Constitution, treaties or laws of the
United States, or where any title, right, privilege, or immunity
is specially set up or claimed under the Constitution, treaties or
statutes of, or commission held or authority exercised under,
the United States.

For the purposes of this section, the term ‘‘highest court of a
State’’ includes the District of Columbia Court of Appeals.

42 U.S.C. § 1983

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 subjected, any
citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution 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 considered to be a statute of the District of
Columbia.

Fed R. Civ. P. 12(b)

Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or third-
party claim, shall be asserted in the responsive pleading thereto
if one is required, except that the following defenses may at the
option of the pleader be made by motion: (1) lack of jurisdic-
tion over the subject matter, (2) lack of jurisdiction over the
person, (3) improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a claim

———

upon which relief can be granted, (7) failure to join a party
under Rule 19. A motion making any of these defenses shall be
made before pleading if a further pleading is permitted. No
defense or objection is waived by being joined with one or more
other defenses or objections in a responsive pleading or motion.
If a pleading sets forth a claim for relief to which the adverse
party is not required to serve a responsive pleading, the adverse
party may assert at the trial any defense in law or fact to that
claim for relief. If, on a motion asserting the defense numbered
(6) to dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be
treated as one for summary judgment and disposed of as pro-
vided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a
motion by Rule 56.

Fed. R. Civ. P. 56(b)

A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory judgment is sought may, at any
time, move with or without supporting affidavits for a sum-
mary judgment in the party’s favor as to all or any part thereof.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988
No. 88-1277

>

STANLEY V. TUCKER, Ay
Petitioner,

CONNECTICUT NATIONAL BANK, NEIL E. ATLAS, BOURKE G.
SPELLACY, and UPDIKE, KELLY & SPELLACY, P.C.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

>_>

RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE FACTS

This case has a protracted factual and litigation history.' In
1966, Hartford National Bank? entered into a note and mort-
gage with Stanley V. Tucker for an apartment building located
in Torrington, Connecticut. In 1976, Neil E. Atlas, Esq. was
retained by Hartford National Bank to commence a foreclosure
action following default by Tucker on his note obligations.
During the long course of the foreclosure proceedings the court
appointed rent receivers for the property and heard numerous
motions by Tucker seeking to discharge the receivers and chal-
lenging the conduct of the receivership.

Judgment of foreclosure was rendered in favor of the bank.
Hartford National Bank and Trust Co. v. Tucker, No. 25761
(Jud. Dist. Litchfield), aff’d, 172 Conn. 675, 364 A.2d 643
(1976). Tucker has appealed this case five times to the Connecti-
cut Supreme Court, along with three unsuccessful attempts to
obtain a writ of certiorari to the United States Supreme Court.
Tucker’s first appeal to the Connecticut Supreme Court was
dismissed. Hartford National Bank and Trust Co. v. Tucker,
172 Conn. 675, 364 A.2d 643 (1976). His second appeal was
also dismissed. Hartford National Bank and Trust Co. v.
Tucker, 174 Conn. 759, 378 A.2d 1079 (1977). Tucker’s third
appeal affirmed the trial court’s judgment of foreclosure and
remanded to set a new date for public sale. Hartford National
Bank & Trust Co. v. Tucker, 178 Conn. 472, 423 A.2d 141
(1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d
319 (1980) (Tucker J). In Tucker’s fourth appeal, the Connecti-
cut Supreme Court set aside a sale made during the appeal and

| A succinct history of this case is set forth in Hartford National Bank
and Trust Company vy. Stanley Tucker, 195 Conn. 218, 220, 487 A.2d
528, cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985).

2 The present defendant, Connecticut National Bank, is the successor
of Hartford National Bank. Connecticut National Bank is a wholly
owned subsidiary of Hartford National Corporation, a Delaware cor-
poration which is a wholly owned subsidiary of Shawmut National
Corporation, a Delaware corporation.

3

remanded for a new sale date. Hartford National Bank & Trust
Co. v. Tucker, 181 Conn. 296, 435 A.2d 350, cert. denied, 449
U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 1221 (1980) (Tucker IJ).
The fifth time Tucker appealed to the Connecticut Supreme
Court, the court specifically approved the conduct of the rent
receivership and remanded for a new sale date. Hartford
National Bank & Trust Co. v. Tucker, 195 Conn. 218, 487 A.2d
528, cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111
(1985) (Tucker II].

Upon remand from Tucker III, prior to a court-ordered sale,
Tucker sold the property which was the subject of the litigation
for Eight Hundred Forty Thousand Dollars ($840,000.00).
Complaint { 17; Second Circuit Joint Appendix A-7.° The sale
was approved by the Connecticut Superior Court and the pro-
ceeds distributed.

STATEMENT OF THE CASE

The petitioner filed suit against Connecticut National Bank,
Neil E. Atlas, Bourke G. Spellacy, and Updike, Kelly & Spel-
lacy, P.C.* on or about August 12, 1987, seeking ‘‘declaratory
relief and damages.’’> Complaint ¢ 1; A-1. The respondents
filed a motion to dismiss on or about September 4, 1987, on the
grounds of res judicata and collateral estoppel. On April 27,
1988, the United States District Court for the District of Con-
necticut, The Honorable Alan H. Nevas, granted ‘‘in its
entirety the defendants’ Rule 12(b)(6), Fed. R. Civ. P. motion
to dismiss.’” Memorandum of Decision 9; A-55. The court held

3. +The ‘‘A”’ citations are to the Appendix filed by the petitioner with
the Second Circuit Court of Appeals on September 8, 1988. The peti-
tioner did not file a detailed appendix of the pleadings with the United
States Supreme Court.

4 Neil E. Atlas, Esq., Bourke G. Spellacy, Esq. and Updike, Kelly &
Spellacy, P.C. were sued only because each represented Connecticut
National Bank against the petitioner in the foreclosure actions.

5 Contrary to the suggestions of the petitioner, he never moved for
permission to file an amendment to his complaint. Compare Petition

p.3.

I SS

4

that ‘“‘those portions of the complaint supporting Tucker’s
claim for relief from the effect of the state court judgments
must be dismissed for lack of subject matter jurisdiction.”’
Memorandum of Decision 7; A-53 (relying on the similar dis-
missal in Tucker v. Northeast Savings, F.A., 675 F. Supp. 763
(D. Conn. 1987), summarily aff’d, 849 F.2d 1468 (2d Cir.
1988), petition for cert. filed, No. 88-719 (U.S. Nov. 7, 1988).
The court further concluded that ‘‘because there is no allega-
tion that prospective application of [Connecticut Practice
Book] sections 504-510 will cause the plaintiff redressable
harm, Tucker lacks the ‘distinct and palpable injury’ that is a
necessary underpinning for standing to pursue a facial chal-
lenge to the rent receiver procedures.’’ Memorandum of Deci-
sion 9; A-55 (footnote and citations omitted). The petitioner
moved to vacate or reverse the judgment pursuant to Fed. R.
Civ. P. 60(b) on or about May 25, 1988. A-56. The respondent
opposed the motion and by decision dated June 20, 1988, the
motion was denied. A-57. On June 23, 1988, the petitioner filed
a motion for rehearing of the denial of his Rule 60(b) motion;
the motion for rehearing was denied on June 28, 1988. A-57.

On July 6, 1988, the petitioner filed an appeal with the
United States Court of Appeals for the Second Circuit. The
respondent moved for dismissal and summary affirmance on
September 22, 1988, which motion was granted by the Second
Circuit Court of Appeals on November 2, 1988. The Court of
Appeals for the Second Circuit also denied on November 2,
1988, Tucker’s motion to certify the case for further appeal.
Tucker then petitioned this Honorable Court for a wnit of cer-
tiorari.

SUMMARY OF ARGUMENT

Plaintiff’s Petition for a Writ of Certiorari seeks review of
the decision of the United States Court of Appeals for the Sec-
ond Circuit summarily affirming the dismissal of this case by
the United States District Court for the District of Connecticut.
The District Court correctly held that it had no subject matter
jurisdiction to review the final judgment of a state court in the

5

underlying foreclosure action and the rent receiverships ancil-
lary to the foreclosure. Once the state court avenues were
exhausted, the decisions were res judicata. The petitioner had a
“‘full opportunity to present his claims’’ during the nine year
state court action. Hartford National Bank & Trust Co. v.
Tucker, 195 Conn. 218, 224, 487 A.2d 528 (1985), cert. denied,
474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 258 (1985). The Dis-
trict Court also held that the petitioner, having sold the prop-
erty at issue, lacked standing in that he failed to demonstrate
any prospective losses that would satisfy the standing require-
ment to challenge the facial validity of the Connecticut Practice
Book rules on receiverships. The Connecticut Supreme Court
has previously held that those rules accorded the petitioner due
process of law and are constitutional both on their face and as
applied by the Connecticut Superior Court. Hartford Federal
Savings & Loan Ass’n v. Tucker, 196 Conn. 172, 491 A.2d
1084, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 111
(1985).

Nonreview of state court decisions by the United States Dis-
trict Court and actual injury as a requisite for standing are long
established principles which present no conflict with other Cir-
cuits nor with the Connecticut Supreme Court nor with prior
decisions of this Court. Petitioner’s suggestion that other Cir-
cuits would have permitted him to amend his complaint ignores
the facts of those cases and the fact that petitioner has had his
(many) days in court on the issues he raises in this lawsuit. The
interpretation of Connecticut Practice Book §§ 504-510 on rent
receiverships is not an important question of federal law in
great need of settlement by this Court. Petitioner has identified
no misconduct or aberrant procedure by the lower courts which
would warrant exercise of this Court’s supervisory powers.

For all of these reasons the Petition for a Writ of Certiorari
to the United States Court of Appeals for the Second Circuit
should be denied.

6

ARGUMENT

I. TUCKER HAS NOT PRESENTED SPECIAL AND
IMPORTANT REASONS SUFFICIENT TO WARRANT
THIS COURT’S REVIEW OF HIS CASE

Tucker has petitioned for a writ of certiorari to appeal the
decision of the Second Circuit Court of Appeals. He claims
jurisdiction pursuant to 28 U.S.C. § 1254(1). Supreme Court
Rule 17.1 states as follows:

A review on writ of certiorari is not a matter of right, but
of judicial discretion, and will be granted only when there
are special and important reasons therefor. The following,
while neither controlling nor fully measuring the Court’s
discretion, indicate the character of reasons that will be
considered.

(a) When a federal court of appeals has rendered a deci-
sion in conflict with the decision of another federal court
of appeals on the same matter; or has decided a federal
question in a way in conflict with a state court of last
resort; or has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such a
departure by a lower court, as to call for an exercise of this
Court’s power of supervision.

(b) When a state court of last resort has decided a federal
question in a way in conflict with the deciston of another
state court of last resort or of a federal court of appeals.

(c) When a state court or a federal court of appeals has
decided an important question of federal law which has
not been, but should be, settled by this Court, or has
decided a federal question in a way in conflict with appli-
cable decisions of this Court.

No such ‘‘special and important’’ reasons exist. Tucker’s
complaint alleged that the Superior Court lacked jurisdiction
under Connecticut General Statutes § 51-14 to adopt Connecti-
cut Practice Book §§ 504-510. Complaint 4 10; A-4. He also

4

alleged that §§ 504-510 do not give notice of defenses nor pro-
vide for a ‘‘meaningful hearing’’ where a property owner can
challenge the appointment of a receiver, thus depriving the
equitable property owner of due process. Complaint { 11; A-5.
Tucker further alleged that Connecticut Practice Book §§ 504-
510 were vague and lacking in standards to guide a Superior
Court judge in making an appointment of a receiver. Com-
plaint q 12; A-S.

The District Court decision quoted directly from the Honor-
able Peter C. Dorsey’s decision in a nearly identical caseanvolv-
ing the very same petitioner. Tucker v. Northeast Savings,
F.A., supra. In that case, the court found that Tucker’s suit
was:

no less an attempt to convert an appeal of a state judgment
into a section 1983 cause of action. The portions of the
complaint which allege that plaintiff was deprived of prop-
erty without due process of law by defendants’ application
of the rent receiver procedures of Practice Book sections
504-510 in the state foreclosure proceedings must be dis-
missed for lack of subject matter jurisdiction.

Tucker v. Northeast Savings, F.A., 675 F.Supp. at 767. The
District Court in this case concluded that ‘*‘Tucker had ‘full
opportunity to present his claims’ during the appellate pro-
cess.”” Memorandum of Decision 7; A-53 (quoting Tucker JI/).
Therefore, Tucker’s claims for relief from the consequences of
the state court judgments were dismissed for lack of subject
matter jurisdiction.

The lower court also held that Tucker lacked standing to
challenge the facial validity of Connecticut Practice Book
§§ 504-510 because his own complaint stated that he no longer
owned the property. Complaint { 17; A-7. Thus, he lacked the
requisite injury to pursue a declaratory judgment of the facial
validity of the challenged Practice Book sections. Memoran-
dum of Decision 8; A-54.

8

A. The Second Circuit Decision Does not Conflict with
Other Circuits

Petitioner cites no other Court of Appeals decisions, much
less contrary ones, reviewing Connecticut Practice Book
§§ 504-510. The petitioner has made a disingenuous argument
that the District Court’s decision in this case conflicts with
either The Ninth Circuit Court of Appeals or the District of
Columbia Court of Appeals, citing Karim-Panahi v. Los
Angeles Police Department, 839 F.2d 621 (9th Cir. 1988) and
Ham v. Smith, 653 F.2d 628 (D.C. Cir. 1981).

In Karim-Parahi a pro se plaintiff filed a complaint alleging
claims under 42 U.S.C. §§ 1983, 1985 and 1986 against the City
of Los Angeles, the Los Angeles Police Department and various
of their agents and employees arising out of an earlier arrest,
strip search and prosecution. He also purported to allege
employment discrimination and state law tort claims.

On defendant’s motion, the district court dismissed the plain-
tiff’s complaint with leave to amend, ruling that the complaint
was vague, ambiguous and unintelligible. ‘‘The court explained
to Karim-Panahi that the Federal Rules of Civil Procedure
require a short, concise, brief statement of your case but the
court did not identify any particular deficiencies of the com-
plaint.’’ Jd. at 623.

Karim-Panahi then amended the complaint which was once
again dismissed pursuant to Fed. R. Civ. P. 12(b)(6). The plain-
tiff failed to set forth in specific language the factual allegations
of his complaint. It also contained legal conclusions but no
specification of any facts to substantiate the legal claims.

The Ninth Circuit Court of Appeals held that since the
defects in the complaint could be cured by amendment that the
district court had the obligation to advise the plaintiff of his
errors and granted the plaintiff the right to amend.

Ham v. Smith simply held that before ‘‘granting summary
judgment against a pro se imprisoned plaintiff, the district
court ‘‘at a bare minimum”’ should give the plaintiff fair notice
of the requirements of the summary judgment rule.’’ Ham v.

9

Smith, 653 F.2d 628, 630 (D.C. Cir. 1981) (following Hudson v.
Harvey, 412 F.2d 1091 (D.C. Cir. 1968)). The court did not
expand the rule to require the court in all cases involving a pro
se party and a motion for summary judgment to instruct the
civil litigant in the legal standards of summary judgment and
the party’s requirements under Fed. R. Civ. P. 56. Rather, the
court rightfully held that in cases involving prisoners unrepre-
sented by counsel and subject to detainment they be given ‘‘fair
notice of the requirements of the summary judgment rule.’’ Jd.
at 1074.

Tucker alleges that, as pro se plaintiff,° he should have been
given the right of amendment prior to dismissal. First, Tucker
never moved the court for permission to amend his complaint.
Thus it is inaccurate to say that the District Court refused to
allow him to amend. Secondly, unless Tucker were to recant the
judicial admission from his first complaint that he had sold the
property, no amendment of language could restore to him the
property interest he lacked to challenge prospectively the rent
receivership rules on their face.

The petitioner’s case was dismissed by the District Court on
grounds of lack of subject matter jurisdiction and standing.
Therefore, the decisions of the United States District Court for
the District of Connecticut and the United States Court of
Appeals for the Second Circuit were consistent with the Ninth
Circuit and District of Columbia holdings. Neither of the

6 It is questionable whether the tender mercies traditionally accorded
pro se litigants are deserved by Tucker who has appealed to the Con-
necticut Supreme Court, Connecticut Appellate Court or Connecticut
Appellate Session at least forty-five times in the past fifteen years and
in this dispute alone four times petitioned this Court for a writ of cer-
tiorari. Tucker v. Connecticut National Bank (this case); Tucker 1/,
Tucker II, Tucker III. E.g. Hartford Federal Savings & Loan Associa-
tion v. Tucker, 196 Conn. 172, 491 A.2d 1084 (1985); Tucker v. Con-
necticut Ins. Placement Facility, 192 Conn. 653, 473 A.2d 1210 (1984);
Burritt Mut. Sav. Bank of New Britain v. Tucker, 183 Conn. 369, 439
A.2d 396 (1981); Hartford Federal Savings & Loan Ass’n v. Tucker,
181 Conn. 607, 436 A.2d 1259 (1980); Mechanics Sav. Bank v. Tucker,
178 Conn. 640, 425 A.2d 124 (1979); City of Hartford v. Stanley
Tucker, et al., 174 Conn. 792, 381 A.2d 1369 (1978).

10

grounds that the District Court here used for dismissal were
capable of being perfected by amendment. Even if the peti-
tioner had been denied his non-existent request to amend, it too
would not have been sufficient to warrant a reversal of the case.

B. The Second Circuit Decision Does Not Conflict With The
Connecticut Supreme Court

The Connecticut Supreme Court has repeatedly upheld the
application of the rent receivership rules as applied to Tucker’s
properties. In this very same dispute the Court said:

Since the defendant exercised his right to appeal from the
appointment of the rent receiver, we are entitled to pre-
sume that he had a full opportunity to present his claims.

Not only did the trial court have the authority to continue
the receivership and to ‘‘modify any such order’’ as neces-
sary, but also to ‘‘make any such order in the action as the
exigencies of the case may require.’’ General Statutes § 52-
504; see also Practice Book § 509.

This litigation has lasted nine years. There is no longer any
reason to prolong this case into the indefinite future by
allowing the defendant a roving inquiry into irrelevant
matter in the subsequent proceedings. Our mandate prop-
erly interpreted in the light of prior decisions of this Court
and the applicable statute directs the route to be followed.

Tucker III at 224-225.

The Connecticut Supreme Court has also rebuffed Tucker’s
attempts in state court to sue the rent receivers, attorneys and
foreclosing parties connected with the rent receiverships placed
on Tucker’s properties. Tucker v. Helco, 13 Conn. App. 825,
539 A.2d 148, cert. denied, 207 Conn. 811, 541 A.2d 1241
(1988); Tucker v. American Insurance Company, 3 Conn. App.
397, 488 A.2d 1278, cert. dismissed, 196 Conn. 802 (1985);
Tucker v. Pinney, 8 Conn. L. Trib. No. 51, p.15, 17 (1982),
aff'd, 3 Conn. App. 678, 49C A.2d 1032, cert. denied, 197

11

Conn. 804, 499 A.2d 56 (1985); Hartford Federal Savings &
Loan Assn. v. Tucker, 196 Conn. 172, 177, 491 A.2d 1084, cert.
denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed. 2d 258 (1985).

Tucker cites no decisions of the Connecticut Supreme Court
which would permit him to relitigate in this case the propriety
of the conduct of the rent receivers in the underlying state court
foreclosure action, which conduct was supervised and approved
by the Connecticut Superior and Supreme Courts. Tucker II] at
225. Connecticut also maintains a rule of standing which
requires the plaintiff to be exposed to an actual injury of his
own before he can challenge the facial validity of a legislative
enactment. Husti v. Zuckerman Property Enterprises Ltd., 199
Conn. 557, 508 A.2d 735 (1986). There is no conflict between
the Connecticut Supreme Court and the decisions in this case of
the United States District Court for the District of Connecticut
and the United States Court of Appeals for the Second Circuit.

C. The Lower Court Proceedings Were Ordinary

The supervisory power of this Court is properly invoked
upon a petition for writ of certiorari only when the conduct of
the lower courts is totally outside the bounds of civilized judi-
cial demeanor or conduct of the proceedings. See Supreme
Court Rule 17.1.

Petitioner has not documented any such outrageous conduct
by the lower courts. The procedure was quite routine. In
response to plaintiff’s complaint, defendants filed a motion to
dismiss which on the face of the papers stated defendants’
intent that it be treated as a summary judgment motion pursu-
ant to Fed. R. Civ. P. 12(b) and 56(b). A-27. Plaintiff filed an
opposing brief and his own summary judgment motion with a
brief and affidavit. A-33. The District Court ruled on these
motions as they were presented. Tucker gave the District Court
two additional opportunities to consider the issues, by way of
motion to vacate the judgment and motion for rehearing of the
motion to vacate. Upon such further consideration the court
declined to change its decision. Similarly at the Second Circuit
level Tucker filed his main brief and a brief in opposition to

12

defendants’ motion to dismiss and for summary affirmance.
The posture of the case did not call for evidentiary hearings. No
jury was involved. Inflamed passions were not and could not
have been an issue. This is simply a textbook example of rea-
soned disposal according to standard procedure of a claim
which never should have been brought.

D. No Federal Statute Is In Issue

This whole case revolves around the procedural rules of one
state’s courts. Plaintiff has not challenged any federal statute.
Neither novelty nor the characterization of an ‘‘important ques-
tion of federal law’’ applies to the principle that Tucker may
not relitigate in federal court whether the state court judges
were correct in their supervision of the rent receivers on prop-
erty formerly owned by Tucker. See District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75
L.Ed.2d 206 (1983). This case in no way involves any of the
issues or conflicts set forth in Supreme Court Rule 17.1.

The respondents recognize that Rule 17.1(a)-(c) is not
intended to circumscribe the scope of this Honorable Court’s
discretion in deciding to entertain a petitioner’s writ for certio-
rari. However, petitioner identifies no ‘‘special and important’’
reason to grant this petition. Moreover, the petitioner’s pre-
vious attempts to bring these same issues to this Court by way
of petition for writ of certiorari were denied.’ Tucker I; Tucker
II; Tucker II.

7 For example, among the issues raised by Tucker in his 1985 Petition
for Writ of Certiorari in Tucker III are:

Did the Connecticut Supreme Court rule contrary to the opinion of
this Court in appointment of substitute rent receiver WITHOUT DUE
NOTICE including notice of state and federal defenses

Did the Connecticut Supreme Court rule contrary to the opinion of
this court in appointment of substitute rent receiver WITHOUT DUE
NOTICE including notice of speedy mechanism to terminate with
damages and counsel fees a reteiver incompetent or negligent

Did the Connecticut Supreme Court rule contrary to the opinion of
this court in appointment of substitute rent receiver WITHOUT
EQUAL PROTECTION by denying to Owner right to post equal bond
and be rent receiver of property he owns

13

Il. THE PETITIONER HAS FULLY LITIGATED THE
CONSTITUTIONALITY OF CONNECTICUT PRAC-
TICE BOOK SECTIONS 504-510

It is extraordinarily difficult to decipher Tucker’s petition for
a writ of certiorari due to its lack of appropriate form and hap-
hazard drafting. The petitioner has apparently once again
alleged that he was precluded from raising a constitutional chal-
lenge to Connecticut Practice Book §§ 504-510 during the dec-
ade of litigation in the state judicial system. This is simply not
the truth. The Connecticut Supreme Court held that Tucker
had the ‘‘full opportunity to raise his claims during the trial and
appellate process.’’ Tucker III at 224. Moreover, the Connecti-
cut Supreme Court has specifically held that the rent receiver
rules are constitutional. Hartford Federal Savings & Loan
Ass’n v. Tucker, 196 Conn. 172, 176, 491 A.2d 1094, cert.
denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed. 2d 258 (1985).

Due process does not mandate a particular procedure but
rather requires only that certain safeguards exist in what-
ever procedural form is afforded. See Fermont Division v.
Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979), and cases
cited therein. The fourteenth amendment prohibits the
state from denying any person life, liberty or property
without due process of law, but this adds nothing to the
rights of one citizen as against another. United States v.
Cruikshank, 92 U.S. 542, 554, 23 L.Ed. 588 (1876). The
amendment ‘‘in no way undertakes to control the power of
a State to determine by what process legal rights may be
asserted or legal obligations be enforced, provided the
method of procedure adopted for these purposes gives rea-

Did the Connecticut Supreme Court rule contrary to the opinion of
this Court by appointment of substitute rent receiver WITHOUT DUE
PROCESS consisting of notice and hearing as to qualifications

Did the Connecticut Supreme Court rule contrary to the opinion of
this Court in permitting a re-litigation of mortgage ALREADY
MERGED INTO JUDGMENT

Did the Connecticut Supreme Court rule contrary to the opinion of
this Court DENYING EQUAL PROTECTION by refusing Petitioner
a hearing on Set Off of claims against the Bank

14

sonable notice and affords fair opportunity to be heard
before the issues are decided.’’ Jowa Central Ry. Co. v.
Iowa, 160 U.S. 389, 393, 16 S.Ct. 344, 40 L.Ed 467 (1896). |
That opportunity is amply afforded by the rules under
attack. In the first place, every application for the appoint-
ment of a receiver of rents shall be made in or ancillary to
a civil action and no appointment may be made without
notice unless sufficient cause appears. Practice Book Sec-
tion 506. Moreover, there is no violation of due process
when a party in interest is given the opportunity at a mean-
ingful time for a court hearing to litigate the question of
appointment of a receiver. In view of these safeguards we
find unpersuasive the defendant’s argument that the rules
for appointment of a receiver of rents are unconstitu-
tional. |

Hartford Federal Savings & Loan Ass’n v. Tucker, 196 Conn.
at 176. See also Tucker III at 223.

The District Court recognized that even if Tucker didn’t
explicitly challenge Practice Book §§ 504-510 on his current
constitutional grounds during the life span of the state court

; case, ‘‘there was nothing before this court to indicate that
Tucker was precluded from doing so.’’ Memorandum of Deci-
sion 7; A-53. Under the doctrine of res judicata, or claim pre-
clusion, a judgment is final not only as to every matter which
was Offered to prove the claim, but also as to any other admissi-
ble matter which might have been offered for that purpose.
Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L.Ed. 195
(1876). In Friarton Estates Corp. v. City of New York, 681 F.2d
150 (2d Cir. 1982), the Second Circuit Court of Appeals held
that where the constitutional claims presented in a § 1983 action
(arising, incidentally, from foreclosure suits) had already been
made both in state appellate proceedings and by petition for
certiorari to the United States Supreme Court, the contentions
were res judicata, warranting dismissal of the § 1983 action.
The court wrote:

All the constitutional contentions. . . were advanced not
once but time and time again at each of the three levels of

15

the New York court system and on petition for certiorari
to the United States Supreme Court. It is of no conse-
quence whether the district court or this court agrees or
disagrees with the determinations of the New York courts
on issues fully raised before and necessarily decided by
them. Res judicata protects wrong decisions as well as
right ones. It is immaterial that the questions were consti-
tutional in character. . . or that they are now asserted
under 42 U.S.C. § 1983. . .

Friarton Estates Corp. v. City of New York, 681 F.2d at 158.
This Court has confirmed the view that state court decisions on
constitutional issues are res judicata of the same issues raised in
federal § 1983 actions. Migra v. Warren City School District
Board of Education, 465 U.S. 75, 83-85, 104 S.Ct. 892, 79
L.Ed.2d 56 (1983), aff’g, 703 F.2d 564 (6th Cir. 1982). See also
Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308
(1980). Therefore, the District Court correctly dismissed the
case for lack of subject matter jurisdiction and the United
States Court of Appeals for the Second Circuit did not err in
affirming the dismissal.

The petitioner has also claimed that the case of Nelson v.
Regan, 560 F. Supp. 1101 (D. Conn. 1983), aff’d on other
grounds, 731 F.2d 105 (2d Cir.), cert. denied, 469 U.S. 853, 105
S.Ct. 175, 83 L.Ed.2d 110 (1984) changed the law on rent
receivership in early 1983 by imposing a new due process
requirement, specifically, that the defendant be given notice of
defenses. The District of Connecticut held that where a consti-
tutionally protected property right is in jeopardy due to govern-
ment action, ‘‘[a] clear and detailed deprivation notice,
specifying the possible defenses and procedures for asserting
those defenses is mecessary to afford due _ process
protection. . .’’ Nelson v. Regan, 560 F.Supp. at 1107; Mul-
lane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct.
652, 94 L.Ed. 865 (1950).

Inasmuch as Tucker’s Connecticut Supreme Court appeal
was not argued until February, 1985, he was constructively
aware of this change in the law and could have asked the court

nineteen inal

16

to aprise him of any available defenses of which he might other-
wise have been ignorant. Tucker III. See Tucker v. Northeast
Savings, F.A., supra at 766. In any case, the petitioner never
identified any defenses of which he was unaware and should
have been notified. It is simply not credible that the petitioner
was really unaware of applicable defenses at the time the receiv-
ers of rent were appointed or the numerous occasions when he
sought to have them discharged. Case law of long standing
clearly set out those defenses. See Silver v. Kingston Realty -
Corp., 114 Conn. 349, 158 A. 889 (1932) (sufficiency of fore-
closing party’s security in property); Williams v. Robinson, 16
Conn. 517 (1844) (foreclosing party in possession or legally
capable of gaining possession of property). As a habitual pro se
litigant and not one of those who are ‘‘relatively uneducated
and uninformed about their legal rights’’ that Nelson v. Regan,
supra, aims to protect, Tucker surely was aware of, or had rea-
sonable access to, these cases. Accordingly, even if Nelson v.
Regan were applicable, the appellant could not and has not
demonstrated the lack of notice which that case proscribes.

The petitioner also claims that the District Court erred in rul-
ing that Tucker lacked standing to seek declaratory relief on the
facial validity of Practice Book §§ 504-510. Specifically, the
court held:

Tucker has fully litigated the foreclosure matter in state
court and has unsuccessfully sought review in the United
States Supreme Court. . . (b)ecause there is no allegation
that prospective application of sections 504-510 will cause
the plaintiff reversable harm, Tucker lacks the ‘‘distinct
and palpable injury’’ that is a necessary underpinning for
standing to pursue a facial challenge to the rent receiver
procedure. 106 Mile Transport Associates v. Koch, 656 F.
Supp. 1474, 1480 (S.D.N.Y. 1987) (quoting Allen v.
Wright 468 U.S. 737, 752 (1984)).

Memorandum of Decision 9; A-54-55. Tucker admits that he
sold the property at private sale in April, 1986. Complaint 4 17;
A-7; Memorandum of Decision 9n.3; A-55. There is no allega-
tion that prospective application of the rent receiver rules will

A

17

cause him any actual and imminent injury from these defen-
dants. Therefore, it is clear that the petitioner has no standing
to challenge the constitutionality of Connecticut Practice Book
§§ 504-510. See, Northeast Bancorp, Inc. v. Woolf, 576 F.
Supp. 1225, 1232 (D. Conn. 1983), aff’d, 742 F.2d 1439 (2d
Cir. 1984). The cases cited by the petitioner in the petition for a
writ of certiorari fully support the position of the respondents.
See Petition p. 18-20.

Ill. THE ROOKER-FELDMAN ABSTENTION DOCTRINE
PRECLUDED SUBJECT MATTER JURISDICTION TO
THE UNITED STATES DISTRICT COURT

The petitioner also alleges that the abstention doctrine is not
applicable in this case. Petition p. 21. The respondents did not
raise the abstention doctrine in the District Court or the Court
of Appeals. However, as the abstention doctrine would further
support the District Court decision, the respondents present the
following discussion.

In instituting this § 1983 suit in the federal District Court, the
plaintiff sought a ruling that the Supreme Court of Connecti-
cut, in holding the rent receiver rules constitutional as applied
and on their face, was wrong. He sought review of the decision
of a state court. The proper. means of obtaining such a review
are by petition for writ of certiorari or by direct appeal to the
United States Supreme Court.®

This Court has delineated the jurisdictional boundaries: ‘‘[A]
United States District Court has no authority to review final
judgments of a state court in judicial proceedings. Review of
such judgments may be had only in this court.’’ District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103
S.Ct. 1303, 75 L.Ed.2d 206 (1983). Petitioner himself was a
party to most of the recent cases upholding the constitutionality
of the rent receiver rules. Hartford Federal Savings & Loan
Ass’n v. Tucker, supra, and cases cited. Thus, he has had, and

8 The United States Supreme Court has, in fact, denied certiorari, in
this dispute three times. See 445 U.S. 904, 100 S.Ct. 1079, 63 L.Ed.2d
319 (1980); 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 1221 (1980); 474
U.S. 845, 100 S.Ct. 135, 88 L.Ed.2d 258 (1985)

eee

18

in many cases has taken, the opportunity to seek direct review
of the state court decisions which he now seeks to collaterally
attack.

In Rooker v. Fidelity Trust Company, 243 U.S. 413, 44 S.Ct.
149, 68 L.Ed. 362 (1923) this Court refused to permit a losing
state court litigant to invoke federal jurisdiction to attack a
state court judgment on the ground that it had unconstitution-
ally misapplied state law. The Court held that an appeal
through the state courts to the Supreme Court constituted the
exclusive procedure by which the judgment might be reviewed
for constitutional error.

If the constitutional questions stated in the bill actually
arose in the cause, it was the province and duty of the state
courts to decide them; and their decision, whether right or
wrong, was an exercise of jurisdiction. If the decision was
wrong, that did not make the judgment void, but merely
left it open to reversal or modification in an appropriate
and timely appellate proceeding. . . Under the legislation
of Congress, no court of the United States other than this
Court could entertain a proceeding to reverse or modify
the judgment for errors of that character. . . To do so
would be an exercise of appellate jurisdiction.

Rooker v. Fidelity Trust Co., 263 U.S. at 415-416.

In Feldman, this Court repeated the principles of Rooker,
stating:

The District of Columbia Circuit properly acknowledged
that the United States District Court is without authority
to review the final determinations of the District of
Columbia Court of Appeals in judicial proceedings.
Review of such determinations can be obtained only in this
Court. See 28 U.S.C. § 1257. See Texaco, Inc. v. Pennzoil
Co., 784 F.2d 1133, 1141 (2d Cir. 1986).

District Of Columbia Court of Appeals v. Feldman, 460 U.S. at
476.

19

A disclaimer of jurisdiction by a federal district court under
Feldman is not a discretionary extension of the Younger absten-
tion doctrine. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 699 (1971). The Younger doctrine is intended only to
avoid the risk of federal judicial interference with ongoing state
proceedings. As all state proceedings have long been concluded
in the instant case, Younger abstention is simply inapplicable.
American Disposal Services, Inc. v. O’Brien, 1988 U.S. App.
LEXIS 1805, slip opinion, p. 8 (2d Cir. Feb 8, 1988). See also
Younger v. Harris, 401 U.S. 37 (1971).

Feldman, on the other hand, applies independently of Youn-
ger, and bars federal subject-matter jurisdiction in this case.
Unlike Younger, Feldman enunciates a mandatory construction
of 28 U.S.C. § 1257, which sets forth the various avenues for
review, of state supreme court decisions by the United States
Supreme Court. Thus, the Second Circuit Court of Appeals
held that the doctrine of Feldman and its ancestor, Rooker v.
Fidelity Trust Co.

stems from recognition that (1) state courts are just as obli-
gated and competent as federal courts to decide federal
constitutional questions, ... (2) a path is available
through the state appellate system to the Supreme Court,
and that (3) waste of judicial resources and unnecessary
friction between state and federal courts might ensue if a
federal court intervened to overrule a state court
decision. . .-.

Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133, 1142 (2d Cir.
1986), rev’d on other grounds, 481 U.S. 1, 107 S.Ct. 1519, 95,
L.Ed.2d 1 (1987) (citations omitted). The court concluded that
‘‘It]he severability of these claims by [state] appellate courts
and ultimately by the Supreme Court pursuant to 28 U.S.C.
Section 1257 precludes an inferior federal court from exercising
jurisdiction over them.’’ Texaco, Inc. v. Pennzoil Co., 784 F.2d
at 1143 (emphasis added).

It follows, a fortiori, that past review (as well as prospective
reviewability) by the State of Connecticut Supreme Court also
precludes subject-matter jurisdiction. As the Second Circuit

20

Court of Appeals noted in Pennzoil, ‘‘the state court judgments
in Rooker and Feldman had survived appeal in the state court
system.’’ 784 F.2d at 1142. Indeed, while the Younger abstenta-
tion doctrine may act only to delay federal district court
subject-matter jurisdiction pending the completion of the state
court proceedings, the Rooker-Feldman principle absolutely
forecloses such jurisdiction where such proceedings have
already been concluded holding the challenged statute or behav-
ior constitutional and United States Supreme Court review was
either available or had been denied. Compare Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 1528, 95 L.Ed.2d 1
(1987) with Texaco, Inc. v. Pennzoil Co., supra, 784 F.2d at
1141-43.

Neither the respondent, the District Court nor the Second
Circuit Court of Appeals relied upon the Rooker-Feldman doc-
trine. However, it supports the District Court’s decision that
the court lacked subject matter jurisdiction over petitioner’s
damages claims arising from the conduct of the rent receivers
supervised by the Connecticut courts.

21

CONCLUSION

For nearly a decade and a half in every possible forum Stan-
ley V. Tucker has challenged the appointment and conduct of
court appointed rent receivers on his property in foreclosure.
The United States District Court properly concluded that he has
had his day in court and that it is not the function of the federal
trial court to review the decisions of the Connecticut Supreme
Court approving the conduct of those receiverships and uphold-
ing the validity and constitutionality of the Connecticut Prac-
tice Book rules governing receiverships. Having sold the
property in question, Tucker has no present or prospective risk
of being subjected by these defendants to the receivership rules.
Thus, he lacks standing to challenge the facial constitutionality
of those rules and the District Court correctly so held. The
United States Court of Appeals for the Second Circuit found so
little merit in Tucker’s claims that it summarily affirmed the
District Court’s decision.

Tucker now petitions to have this court review his case. As
discussed above, the decisions of the Second Circuit and Dis-
trict Court present no conflict between the Circuits nor with the
Connecticut Supreme Court nor any new, important question
of federal law which would justify acceptance of this case. Peti-
tioner simply disagrees with the numerous courts which have
ruled against him.

Respondents, Connecticut National Bank, Neil E. Atlas,
Bourke G. Spellacy, and Updike, Kelly & Spellacy, P.C.,
respectfully request that the Petition for a Writ of Certiorari to
the United States Court of Appeals for the Second Circuit be
denied.

22

Respectfully submitted,

By:

By:

DEFENDANTS-RESPONDENTS,
Connecticut National Bank and
Neil E. Atlas

/s/ Bourke G. Spellacy

BOURKE G. SPELLACY, ESQ.
KAREN P. BLADO, ESQ.
MORTON H. LIBBEY, JR., ESQ.
Updike, Kelly & Spellacy, P.C.
P.O. Box 31277

Cne State Street

Hartford, Connecticut 06103
(203) 548-2600

DEFENDANTS-RESPONDENTS,
Connecticut National Bank,

Neil E. Atlas, Bourke G. Spellacy, and
Updike, Kelly & Spellacy, P.C.

/s/ Karen P. Blado

KAREN P. BLADO, Esq.
MORTON H. LIBBEY, JR., ESQ.
Updike, Kelly & Spellacy, P.C.
P.O. Box 31277

One State Street

Hartford, Connecticut 06103
(203) 548-2600

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0846%3A2. Public record. Not legal advice.