Petition for Writ of Certiorari — Corpus Christi Taxpayers Ass'n v. City of Corpus Christi

f ena ate:

2 Court, U.S,

88 1 147 ) FILED

o ° ne a ee 8

JAN 12 1989

RRRARRARRRAARRARARRRARARARARARARRRARRRARRER

t JOS&GPH F. SPANIOL, JR.

IN THE CLERK

SUPREME COURT OF THE UNITED STATES

(ARR RRR RRRRRRRRRERERRRRRRRR REESE ES |

October Term, 1988

RRRRHRRRARRRARRRARRARRARARRARRRAERRREAE

CORPUS CHRISTI TAXPAYERS ASSOCIATION,

TOM HUNT and JOE O'BRIEN,

Petitioners

~against-

CITY OF CORPUS CHRISTI, TEXAS

and STATE OF TEXAS,

Respondents

(RRR RRRRRRRRRRRRRRARERSARRSRSRSRE EE ES |

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

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a ht ‘ZL a

Glynn. A. Pugh, @ounsel

for Petitioners

723 N. Upper Broadway, Ste. 512

Corpus Christi, Texas 78401

(512) 881-8483

QUESTIONS PRESENTED

l- The lower Federal courts have extended

to absurdity the Feldman rule of "inex-

orably intertwined", combining as one, two

separate causes of actions, each based on

denial of two different Constitutional rights.

2- Is a Federal district court (having

subjectmatter jurisdiction based on denial

of civil rights) deprived of jurisdiction

by reason of a prior state court judgment,

which is a nullity?

3- A conflict of law between circuits should

be resolved: Fifth Circuit has imposed sanctions,

whereas in an earlier case, Pennzoil v Texaco,

infra, sanctions mere not imposed on a like

litigant by the Second Circuit.

LIST OF PARTIES

The names contained in the caption of

this case includes the names of all parties

to this cause,

RRR RRRRERRERRERERERERERSRRRR ERE SE SS

TABLE OF CONTENT

ARP RRRRARBRARABRARRRERRERERRARAARR SAS SE SE

Subject Page

Questions Presented -a-

List of Parties -a-

Table of Content -b-

Table of Authorities -c-

Opinions Below l

Jurisdictional Grounds of the Court 2

Constitutional and Statutory Provisions 2-3

Statement of the Case 3-9

Basis for Federal Jurisdiction in the 9-13

First Instance=- Subjectmatter juris-

diction

Substantiality of the Questions 14-18

Presented

Reasons for Granting Wirt 18-24

ARRTRRRRRARMRKRKRKRKRRKARRRKARARKARARRAR

Appendix (Separately bound)

ARRATARARRRARARARAKRARRARARRRRRKARAARAA

-be

TABLE OF AUTHORITIES

Page

Arkansas Writers Project v Ragland, 10

“~Gommr. Of Rev. of Ark. ORL ae? $.Ct.

36, 92 LEd2d 767

Creel v City of Atlanta (CA,Ga,1968) 10

399 Fad 4

Davis v Wechsler (1923) 263 US 22,24 17

Dawson v Childs (CA5,Tx,1982) 665 F2d 705 7,10

D.C. Court of Appeals v Feldman (1983) 18,19

460 US at 48 12,13 20

Fromm v Rosewell (CA,I11,1985) 771 F2d 1089 10

Lawrence v State Tax Comm. of Miss. (1932) 18

286 US 276,282

Londoner v Denver (1908) 210 US 373 2,4,10,

) he 8 |

Monroe v Pape (1961) 365 US 167,182 19

Peralta v Heights Medical Center, Inc. 16,18,

(No 86-1430, 2,9,13, Decided 02/24/88) 23

56 Law Week pp. 4189-4191

Pennzoil v Texaco (1987) 107 S§.Ct.1519 32,46,

19,23

Railroad Commr's of Texas v Pullman (1941) 18

312 US 496 18

Younger v Harris (1971) 401 US 37 22

US Constitution

Amendment XIV, Article l 2,8,9,

22

Federal Statutes

28 uSC Sec. 1331 12

28 USC Sec. 1343 3

42 USC Sec. 1983 3,4,10,

12,20

Texas Law:

Tx. Constitution, Article 8, Section 21 2,5,10

Tx. Rules of Civil Procedure, Rule 166A 6,11

-C-

0 SSS

IN THE

SUPREME COURT OF THE UNITED STATES

ROR RRRRRRERSRRRE EE SF

October Term, 1988

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CORPUS CHRISTI TAXPAYERS ASSOCIATION,

TOM HUNT and JOE O'BRIEN,

Petitioners

Vs

CITY OF CORPUS CHRISTI, TEXAS

and STATE OF TEXAS,

Respondents

RRRRRAARARRAEAREARRARRARRARRRARARRERARART

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

RRRARRARARRARARARARARARARARAT

OPINIONS OF LOWER COURTS

A copy of the opinion of the U.S. Court

of Appeals for the Pifth Circuit is included

in the Appendix, Pages 1-10. A copy of the

Federal district court opinion is attached,

App. Pages 11-15. Copies of the three opinions

rendered in the court system of the state of

Texas are also reproduced in the Appendix

(trial court, App.pg.16, court of appeals,

App.pp.17-23, and state supreme court App.pg.

24).

JURISDICTIONAL GROUNDS OF SUPREME COURT

The judgment of the U.S. Court of Appeals

was entered in this case on August 22, 1988.

A motion for rehearing, timely filed , was

denied on October 14, 1988. The U.S. Supreme

Court has jurisdiction under 28 USC Sec.

1254(1) [by writ of certiorari to U.S.Court

of Appeals). As to their Constitutional right

to a hearing, Petitioners rely on tondoner

v Denver (1908) 210 US 373. As to the

nullity of state court judgments denying

due process, Petitioners rely on Peralta v

Heights Medical Center, Inc. (No. 86-1430,

Decided 04/24/88) 56 Law Week pp. 4189-4191.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Petitioners assert denial of due process,

XIV Amendment to the U.S. Constitution, in

Appendix at Part 4. Petitioners rely also on

Article 8, Section 21 of the Texas Constitution,

(copy at Appendix Part 5), which provisions

track the civil right set forth in Londoner v

Denver, supra, namely, the requirement that

«ie

local governments must hold a hearing before

an increase in ad valorem property tax can be

adopted.

The statute, 28 USC Sec 1343, establishes

jurisdiction of Federal district courts in

cases where state governments, including sub-

divisions, have denied civil rights under 42

USC Sec. 1983.

The statute, 28 USC Sec. 1254(1), provides

for Supreme Court jurisdiction over decisions

of the U.S. Courts of Appeal.

STATEMENT OF THE CASE

The one basic fact here is undisputed:

Petitioners were denied a hearing by the

Corpus Christi city council. The court pro-

ceedings were quite limited for Petitioners'

two separate causes of action: (1) denial

of civil rights by the City and (2) denial of

due process by state courts where Petit-

ioners sued to enforce their civil rights.

Both causes were dismissed at the outset

by both the Texas and Federal courts. The

sien

State trial court dismissed by a summary judg-

ment. The Federal court dismissed Petitioners'

separate suit, based on lack of subject-

matter jurisdiction. The Federal district

court's dismissal is here appealed,

Material Events in Progress of This Case

Petitioners asked at a meeting of the

Corpus Christi City Council that a public

hearing be held prior to setting of the

City's 1984 ad valorem tax. The Petitioners

had a right to a hearing under Federal law,

Londoner v Denver, supra. The rule of Londoner

was incorporated into state law by a Texas

Constitution provision, Article 8, Section 2l.

The city council denied Petitioners’ request

for a public hearing, and no hearing was ever

held by the City before it set the 1984 property

tax rate. By refusing to hold a hearing, the

City denied Petitioners their civil rights in

violation of 42 USC Section 1983.

Petitioners then filed a suit in a state

court seeking a court order to compel the

aitlbin

City to hold a public hearing. The trial

court ordered the suit dismissed, granting

the City's motion for summary judgment, App.

Part 3. The summary dismissal of the suit

was contrary to law, as there existed

a material, disputed issue of fact. That

fact, whether there was an increase in tax,

was highly controverted before the trial court.

Petitioners alleged there was an 16.8%

increase in the property tax from the year

1983 to the year 1984, App. Part 6. (Memo-

randum of Plaintiffs in the trial court pro-

ceeding at page ll). The City in its argu-

ments took a contrary position, contending

there was no increase in tax. This fact is

a material issue because a hearing is re-

guired only if there is an increase in tax.

Art. 8, Sec. 21 of Tx. Constitution. The

constitutional provision is supplemented by

a "TRUTH-IN-TAXATION" statute, which orders

a public hearing only if the tax increase

exceeds 3%. The 3% threshold was far exceed-

a

ed by the 16.8% tax increase alleged by

Petitioners. App.Part 6. The Texas district

court record shows clearly that a dispute as

to a material fact existed. Under these cir-

cumstances the trial court erred in granting

a motion for summary judgment dismissing the

Suit. Rule 166-A, Texas Rules of Civil Pro-

cedure. The arbitrary dismissal is wrong on

its face. This dismissal constituted a denial

of Petitioners’ right to due process of law.

Petitioners in the state court proceedings

asserted their Constitutional rights. App. Part

8 (Third Amended Petition). The Texas court

of appeals in its decision, App. Part 3, denied

all petitions of Petitioners asserting their

rights to due process. The Texas supreme court

held that no reversible error was made by the

Texas court of appeals.

Application of Law

Petitioners proceeded first in the state

court to enforce their civil rights before

resorting to the Federal courts, as required

os

by court decisions, Dawson v Childs (C.A.,Tx,

1982) 665 F2d 777. The only forum available

to Petitioners was the state court system even

though Petitioners sought to enforce a Fed-

erally guaranteed civil right. Arbitrary

procedures of the state court, dismissing

wrongfully Petitioners suit, operated to deny

them their Federally guaranteed civil rights.

The state courts declined to rule clearly

on Petitioners' allegations of denial of

due process and other Constitutional rights.

Although Petitioners asserted denial of due

process, the state courts declined to rule

Clearly thereon. Consequently, Petitioners,

having asserted their right to due process

in the state courts should not have their case

dismissed by a Federal court based on default

(failing to assert their Constitutional rights)

in the state courts), App. Part 8 (Third Amended

Petition). Likewise, as no state court adjudi-

cated the denial of due process, there is no

preclusion in the Federal courts. App. Part 3.

ten

In conclusion, Petitioners, denied their

civil rights by the City as no hearing was held

by the City, now seek to enforce their rights

through an order of the Supreme Court to compel

the City to hold a hearing. Secondly, Petition-

ers, denied due process in the state courts by

the arbitrary dismissal, seek to have the dis-

missal declared void and a nullity. Then the

Petitioners can proceed to enforce their civil

rights, guaranteed under Federal law. This

State court dismissal deprived Petitioners of

due process of law, a right guaranteed by Amend-

ment XIV. See Peralta decision, supra.

Petitioners have been deprived of their

civil rights by the City, and of due process

by the state courts, in violation of their

Constitutional rights. The Federal courts

have jurisdiction of the subject matter of

this suit, the right to a public hearing

which was never held. The Supreme Court has

jurisdiction over this cause, as above noted.

oe

BASIS FOR FEDERAL JURISDICTION

Petitioners assert as basis for Federal

court jurisdiction in the first instance that

two denials deprived Petitioners of two differ-

ent Constitutional rights. First, by being de-

nied a public hearing Petitioners were denied

their civil rights, 42 USC Sec.1983. Federal

district courts have jurisdiction under the stat-

ute, 28 USC 1343. Federal jurisdiction exists

concurrently with state courts. Petitioners

properly initiated litigation in a state court.

The second denial of Petitioners’ Consti-

tutional rights, denial of due process, was

done by the Texas court system through its

summary dismissal of Petitioners’ suit seeking

an order to compel the City to hold a hearing.

As explained elsewhere, this dismissal served

to deny due process of law in violation of

Amendment XIV of U.S. Constitution.

The subject matter of Petitioners’ first

cause of action (based on denial of civil

rights) involves the right of taxpayers to

ae

a hearing prior to any tax levy by a local

government, a well established right guaran-

teed in the U.S. Supreme Court decision,

Londoner v Denver (1908) 210 US 373. The

Federal court system has jurisdiction of the

subject matter, 42 USC Section 1983. And the

Supreme Court has jurisdiction, Londoner case,

Supra; Arkansas Writers Project Inc. v Ragland,

Comm'r of Revenue of Arkansas, No 85-1370,

_. US __, decided 04/22/87.

The subject matter of the second cause of

action consists of a denial of right to due

process, which was done by the dismissal of

Petitioners’ suit by the Texas court system,

Ostensibly, considering the provisions of the

Texas Constitution, App. Part 5, an adequate

remedy was provided Petitioners under state law

in the state court system. The availability of

this remedy precluded Petitioners proceeding

first in the Federal court system. Creel v

City of Atlanta (C.A.Ga., 1968) 399 F2d 777;

Fromm v Rosewell (Ct.App. 111,1985) 771 F2ad

«10—

1089; Dawson v Childs (CA,Tx,1982) 665 F2d 705.

But here, in reality Petitioners' apparent

remedy in the state court system was actually

nonexistent, as their suit brought no relief.

The dismissal order is invalid; it is contradict-

ed by motions and pleadings in the trial court

record. Dismissal by summary judgment was

contrary to procedural law, a "a genuine issue

as to a material fact" existed. App. Part 6

(Petitioners' eleven page Memorandum asserted

that the tax increased by 16.8% [Pg.1l1]). The

City, by denying that fact (App. Part 7,

AFFIDAVIT of Juan Garza) made it a disputed

fact. See Rule 166-A, TexasRules of Civil

Procedure, Elsewhere in trialcourt proceed-

ings the City actually asserts the existence

of a genuine issue as to a material fact (App.

Part 7, entitled "RESPONSE", at page 3,

Paragraph VII). |

The trial court dismissal serves as a

precedent, effectively denying relief in

the Texas court system not only to Petition-

att<

ers but to all other Texas property Owners.

Thus, all Texas citizens are denied their civil

rights under Section 1983 without any remedy,

either in the state court system or the Fed-

eral court system. The instant state court

proceedings are themselves proof of the in-

adequacy of any remedy in the state court system,

This summary judgment, if not declared a

nullity, serves as a precedent to deny tax-

payers access to the Texas court system to

enforce their civil rights. This state court

dismissal violated the right to due process of

law under the XIV Amendment, the Federal court

system has subject matter jurisdiction. 28 USC

Sec.1331. See also Pennzoil v Texaco (1987)

107 S. Ct. 1519, and Railroad Commissioners of

Texas v Pullman (1941) 312 US 496, remanding

to a Federal district court for additional

proceedings.

The U.S. Supreme Court accepted juris-

diction in the recent case of Pennzoil v Texaco,

saa

Supra, which involved Federal court system jur-

«ta

isdiction over state court litigation. The

Supreme court should accept jurisdiction in this

similar case, from the Fifth Circuit instead of

the Second. Presented herein are many issues:

scope of Federal judicial system jurisdiction,

subject-matter jurisdiction, comity as to state

litigation, the relationship of the llth and

14th Amendments, among others. These issues

may be needed in resolution, but they are

beyond the scope of this petition.

Like the appeal in the recent Peralta

case, the state court judgment rendered here

is a nullity, as the judgments deprive liti-

gants of the right to due process. The decision

in Peralta is by no means unique. The instant

case is like Peralta v Heights Medical Center

(1988), supra, wherein a Texas court judgment

was void because due process was denied in the

Texas court system. The summary judgment, which

dismissed Petitioners’ state court suit seeking

a hearing, served to deny due process of law,

and therefore it too is a nullity as in Peralta.

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SUBSTANTIALITY OF THE QUESTIONS PRESENTED

I- Constitutional Rights Denied

One substantial issue presented here is:

Under current law in Texas, taxpayer's civil

rights, even though Federally guaranteed, are

unenforceable. In our cultural heritage and

from our early colonial history, we have had

in this nation great respect for the rights of

taxpayers. A significant event in provoking

the colonists to begin a war of independence

was the Boston tea party. That demonstration

was a protest of taxpayers who were being taxed

while being denied any input into the tax system.

The rights of taxpayers have been fought for,

and they are valued highly in our country.

The state court dismissal has served to

deny taxpayers their civil rights. It may be

fairly stated that since 1985, Texas taxpayers

have no right to a hearing before levy of an

increase in taxes by local government, even if

a local property tax be increased by 16.8%,

Or more. Local officials in Texas, statewide,

o14<

refuse to hold public hearings before levying

an increase in taxes, as local officials now

have a defense. Any suit filed by taxpayers to

enforce their civil rights may be dismissed.

Local officials need file only a motion for

summary judgment, coupled with any kind of

affidavit, as here. Consequently, in Texas

the taxpayer's civil right to a hearing, as

provided by Londoner v Denver, supra, no longer

exists. Taxpayers have no recourse or remedy to

enforce their civil right, unless, of course,

the U.S. Supreme Court orders a hearing held

in this proceeding.

The right of taxpayers to a hearing, as

established by the U.S. Supreme Court in

Londoner, has been voided here by court orders

of a state court system. This is a substantial

issue worthy of consideration by the U.S. Su-

preme Court.

II

The second substantial question involves

denial of "due process" by a state court. Petit-

atin

ioners' case, asserting a valid Federal civil

right and Constitutional law issue, was wrong-

fully dismissed. The state court, by arbitrarily

failing to rule on asserted denials of Constit-

utional rights, denied those rights to Petition-

ers. The denial of due process by the state

courts is a substantial issue because Petitioners

were required to proceed in state courts to en-

force their Federally guaranteed rights. The

action taken here was an arbitrary dismissal by

the state trial court in the beginning, pre-trial.

On appeal in the state court system, the denial

of due process was sustained,

In the Texas court system arbitrary procedures,

such as arbitrary dismissals, are not an uncommon

event. The U.S. Supreme Court is aware of the

lack of justice in the Texas judicial system.

Two recent cases illustrate this. Pennzoil, supra,

and Perlata, supra. Admittedly, it is well settled

law that state court procedures are generally at

the discretion of the states. Further, the appli-

cation of procedures in state courts is a matter

ote

based on the manner followed in the court system

of each state, and this may be done consistently

or in an inconsistent manner.

State court procedures, however, cannot be

exercised in such a manner as to effect or avoid a

Federal right. When a Federal right is involved,

minimum Standards of due process, as defined by

Federal law, must be observed by state courts. As

Justice Holmes wrote "Whatever [traps] the State

may set for those who are endeavoring to assert

rights the State confers, the assertion of

federal rights, when plainly and reasonably

made, is not to be defeated under the name of

local practice." Davis v Wechsler (1923) 263 US

22,24. Presented here is an obvious abuse of

discretion by a state trial judge, a frequent

event in the Texas judicial system. But what

is significant here is that this abuse operated

to prevent the enforcement of a Federal right.

The U.S. Supreme Court should establish

the rule that such patterns of abuse by state

courts are not acceptable when Federal rights

att.

are the subject of litigation. It is proper

for the U.S. Supreme Court to inquire into the

adequacy of both state procedures and practices,

when federal rights and questions are involved,

Lawrence v State Tax Commission of Mississippi

(1932) 286 US 276,282 and see also Peralta.

Enumerated requirements have included "fundamental

fairness" and that "the decision of the state

court rests upon a fair or substantial basis".

REASONS FOR GRANTING WRIT

l- Misapplication of holding in Feldman

The Court of Appeals for the Fifth Cir-

cuit erred in holding Federal district courts

have no subjectmatter jurisdiction over cases

previously before a state court. Under the

proceedings in the lower Federal courts the

law as to subjectmatter jurisdiction of Fed-

eral courts is now askew. In other similar

cases the U.S. Supreme Court has remanded,

vesting jurisdiction in lower Federal courts.

Railroad Commissioners of Texas v Pullman (1941)

312 US 496; District of Columbia Ct. of Apps. v

othe

Feldman (1983) 460 US 462; Monroe v Pape (1961)

365 US 167,182.

The district court reliance on Feldman is

misplaced. The principal issue in Feldman in-

volved whether certain local proceedings

"were judicial in nature", The lower court re-

lied principally on a phrase "inextricably

intertwined", as if that phrase included the

entire substance of Feldman. The accuracy

and practicality of that phrase has since been

improved upon by Justice Scalia, who recently

coined a better substitute phrase:"inextricably

integrated with the issue so litigated", Pennzoil

v Texaco, supra.

The instant case differs from Feldman, as

here there is an absence of an adjudication.

Petitioners’ suit being dismissed at the outset

by a summary judgment. Petitioners’ appeal

(asserting denial of due process by the trial

court) was likewise dismissed summarily without

any “adjudication” on the merits. Instead of

deciding issues the decision of the state ap-

a tn

OO

pellate court discussed at length the contro-

verted, material fact, namely, the tax increase,

App. pp. 18-26.

The Court's attention is directed to page

487 of Feldman, the entire page, but note in

particular the statement "the District Court

does not have jurisdiction over these elements"

and "We leave that question to the District

Court on remand". Note that in Feldman the

hietaia Saabs held that the Federal district

court, as to certain issues, had subjectmatter

jurisdiction. In the instant case, unlike in

Feldman, there is no “adjudication in the state

court" on the cause of action based on denial

of civil rights under 42 USC Sec.1983, as Petit-

ioners suit was dismissed at the cutset by grant

of a motion for summary judgment. Under Texas

court decisions the scope of a summary judgment

is narrowly limited, as to preclusion and res

judicata. The scope of the instant summary

judgment is limited: the court's holding is

that the "Truth-in-Taxation"™ statute was not

-20-

—

ie a

violated because there was in fact no increase

in the City's property tax. The City's motion

for summary judgment sought only a limited

holding. |

2- Preservation of civil rights of taxpayers

The civil rights of taxpayers, as found in

Londoner v Denver, should be reinstated for Texas

taxpayers. State courts should not be allowed to

deprive U.S. citizens of Federally guaranteed

rights. The state court litigation has proceeded

through the state supreme court, which denied

Petitioners’ application for writ of error,

noting "No Reversible Error” in the lower court

judgments.

3- Require state courts to observe Federal

due process standards when Federal law

issues are being decided

This case provides the Supreme Court with

an opportunity to establish minimum procedural

standards of due process, to be used by state

court systems, at least when state courts are

deciding Federal, Constitutional law issues. A

afte

broad general rule has been stated: "persons

seeking to vindicate federal rights are to be

assured they have been fairly heard". As

illustrated by the instant case no adequate

remedy was provided here in the state courts,

although Petitioners were entitled to relief.

All state court litigation has been com-

pleted here by Petitioners. No remand is needed

as in the recent Pennzoil case, where state

litigation had not been completed. There is

no unresolved issue of Texas law, so Younger v

Harris (1971) 401 US 37 (abstention) does not

require a remand. The state court proceedings,

such as they were, being so limited and wrongfully

rendered, constituted no adjudication with

preclusive effect under “res judicata", to cut

off Petitioners’ civil rights. Petitioners'

cause of action was arbitrarily dismissed by the

State courts. The abuse of discretion of the

trial judge dismissing this cause of action

denied due process of law in violation of U.S.

Constitution Amendment XIV.

-22-

4- Petitioners’ Constitutional Rights

Petitioners have been denied their civil

rights by the City of Corpus Christi, and

denied due process of law by the Texas court

System, These rights must be maintained invio-

late. If these Federal rights are to exist,

they must be protected by the Federal court

system, as was done in the recent Peralta

decision. Federal Constitutional rights

asserted in state court litigation may be

guaranteed in state courts without inter-

ruption of state court systems.

5= Resolution of Conflict of Circuits

The Fifth Circuit imposed sanctions on

Petitioners for litigating in the Federal

court system seeking relief from unConstitut-

ional judgments of a state court system. App.

Part 1. But no sanctions were imposed on a

Similar litigant by the Second Circuit, or by

the Supreme Court, in Pennzoil v Texaco, supra.

This conflict of law should be resolved.

For these reasons Petitioners respect-

ofS.

fully request the issuance of a writ of

certiorari to review the judgment of the

U.S. Court of Appeals for the Fifth Circuit.

Respectfully submitted,

Glynn A. Pugh, Attorney for Petitioners

723 N. Upper Broadway, Suite 512

Corpus Christi, Tx 78401

(512) 881-8483

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