Opposition Brief — Corpus Christi Taxpayers Ass'n v. City of Corpus Christi

re Supreme Court, U.S.

; FILED

In The JOSEPH Pets. JR.

Supreme Court of the United States

October Term, 1988

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CORPUS CHRISTI TAXPAYERS’ ASSOCIATION,

TOM HUNT, and JOE O’BRIEN,

Petitioners,

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CITY OF CORPUS CHRISTI,

and

STATE OF TEXAS,

Respondents.

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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RESPONDENT

CITY OF CORPUS CHRISTI’S BRIEF

IN OPPOSITION TO CERTIORARI

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CaroL Estes Bray

Senior Assistant City Attorney

Counsel of Record

Fetrx Hattum Gerorce, JR.

City Attorney

City of Corpus Christi

Legal Department

P.O. Box 9277

Corpus Christi, Texas 78469-9277

(512) 880-3360

Attorney for Respondent

City of Cerpus Christi

April, 1989

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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COUNTERSTATEMENT OF QUESTIONS

PRESENTED

1) Whether the United States District Court lacks

jurisdiction or is barred by res judicata, where Petitioners

Complaint alleged they were denied due process by the

Courts of the State of Texas in previous litigation, and

that they were denied due process by the City of Corpus

Christi as to the 1984 tax levy, the subject matter of the

previous litigation.

2) Whether the Court of Appeals for the Fifth Cir-

euit correctly imposed sanctions under 28 U.S.C. 1927,

Fep. R. Crv. P. 11, and Fep. R. App. P. 38.

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TABLE OF CONTENTS

Page

Counterstatement of Questions Presented _0000w.. on el

Table of Contents ....... basco eescesensaipeenipeeaieanan aan ii

Table of Bwtherities oon a ee iil

Opniem Deleware 2

Jurisdictional Grounds over Subject Matter 00000. © 2

Coanterstatement of the Case ...............2.. eee

Federal Court Jurisdiction ccc 4

Reasons for Denying the Petitiom 2.2 csseeenneeee a

The United States Supreme Court should refuse

the application for Writ of Certiorari to the

Court of Appeals: The United States District

Court does not have jurisdiction over Petition-

ers’ alleged cause of action, since the action was

an attack or appeal of a state court judgment;

alternatively, the Petitioners’ claims would be

barred under the doctrine of Res Judicata.

Cum inc sssie ecceetinct ee

Rule 49.2 Motion for Interest and Damages .......... ors 15

Appendix A: Petitioners First Amended Complaint

in the U.S. District Court A-l

Appendix B: Judgment on Remand 0 B-1

11

TABLE OF AUTHORITIES

CASES Page

Allen v. McCurry, 449 U.S. 90 (1980) ............ akcuuaionak 13, 14

Atlantic Coast Line R. Co. v. Locomotive Enqi-

I cca 7

Blynthe v. Hinckley, 180 U.S. 333 (1901) eee 13, 14

Cheramie v. Tucker, 493 F.2d 586 (5th Cir.), cert.

en ee Oe Ce) 8

District of Columbia Court of Appeals v. Feldman

and Hickey, 460 U.S. 462 (1983) uu. supe eet 8, 10

Familia de Boom v. Arosa Mercantil, S.A., C29

F.2d 1134 (5th Cir. 1980), rehearing en bane

634 F.2d 1355, cert. denied, 451 U.S. 1008 (1980)........... 4

Grubb v. Public Utilities Commission of Ohio, 281

cts euane aie 13

ee ee ee Gee, 8 CAO) 14

Hanna v. Home Insurance Co., 281 F.2d 298 (5th

Cir. 1960), cert. denied, 365 U.S. 838 (1961) 00. 8

Lampkin-Assam v. Supreme Court of Florida,

De ) 8

Manufacturers Record Publishing Co. Lauer,

268 F.2d 187 (5th ig cert. denied, 361 USS.°

SSIS I ne OT 8

Marrese v. American Academy of Correspondence

Surgeons, 470 U.S. 373 (1985) 0. 13

Migra v. Warren City School District Board of

Education, 465 U.S. 75 (1984) ............ Een eae 13

Pennzoil Co. v. Texaco, Inc., 481 U.S. —, 107 8.Ct.

a 10, 11, 12

Pennzoil Co. v. Texaco, Inc., 784 F.2d 1183 (2nd

Cir 1987), rev’d, 107 S. Ct. 1519 (1987) oo. 14

iv

TABLE OF AUTHORITIES—Continued

Page

Peralta v. Heights Medical Center, Inc., 495 U.S.

stg BO ees Ot Te RD aaa eee 3, 11

Railroad Commission of Texas v. Pullman, 312

ii: MO CN ccc uinscicens ease aca eaicaitaael . BB

Roadway Express v. Piper, 447 U.S. 752 (1980) ............. 14

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1928)... 7,8

Warriner v. Fink, 307 F.2d 933 (5th Cir. 1962),

cert, demed, 372 US. 948 (1968) ~....0 8

Williams v. Tooke, 108 F.2d 748 (5th Cir.), cert.

Meme, BU GE Ge Ce cea icine crstdecicieaseiaie 8

STATUTES

i Ti 8c ttecscstencleasuias bein es 2,5

26 A. Be eh Be he te le 5

O58 USL. 198 ........ Pent, PS

Bus ta. Sculakcubseelarnimeeeiaaame 3, 7, 8, 12

Pep, 1. Cry, F. 11... z per eieneotr ke Maca uemee ce es i

PE Bc UR akan oerponeeraardenciedeneaeens 1,15

i iS Sy RAP & ESRepenaians a ene Sane COON RNR SaRD HED AVRO 2,6

Sup. Cr. R. 49.2 ..... pideacanincioaatenakaaad 15, 16

No. 88-1478

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In The

Supreme Court of the United States

October Term, 1988

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—

CORPUS CHRISTI TAXPAYERS’ ASSOCIATION,

TOM HUNT, and JOE O’BRIEN,

Petitioners,

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CITY OF CORPUS CHRISTI,

and

STATE OF TEXAS,

Respondents.

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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RESPONDENT

CITY GF CORPUS CHRISTI’S BRIEF

IN OPPOSITION TO CERTIORARI |

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The City of Corpus Christi respectfully prays that

the petition for certiorari to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Cireuit be denied.

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OPINIONS BELOW

The opinion of United States Court of Appeals af-

firming the District Court’s opinion is included in Peti-

tioners’ Appendix, page 1. The United States District

Court Opinion dismissing the case of Petitioners for lack

of jurisdiction and res judicata, is included in Petitioners’

Appendix, page 11. The opinion of the District Court

upon remand is included in Respondents’ Appendix B.

None of these were reported.

The three decisions rendered in the Court system of

the State of Texas are included in Petitioners’ Appendix,

pages 16-24. The Opinion of the District Court of the

State of Texas was unreported. (Petitioners’ Appendix,

p. 16). The Opinion of the Court of Appeals, affirming

that decision, was reported at 716 S.W.2d 579. (Petition-

ers’ Appendix, p. 17). The denial of the application for

writ of error by the Texas Supreme Court was unreported.

(Petitioners’ Appendix, p. 24).

JURISDICTIONAL GROUNDS OVER SUBJECT

MATTER

This Court has jurisdiction to review by writ of cer-

tiorari the decision of the United States Court of Appeals

for the Fifth Cireuit by virtue of 28 U.S.C. 1254(1). How-

ever, the Court should deny the writ, since no greunds for

reversing same have been presented which would fall with-

in the scope of Sup. Cr. R. 17: The legal question as to

whether a District Court had jurisdiction under these facts

has already been decided by this Honorable Court. The

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decision of the Court of Appeals is not in conflict with

this Court or any Federal Appeals Courts, or State Courts.

Further, the opinion of the Court, being soundly based on

prior decisions of this Court is correct: A United States

District Court had no authorization to review a decision

of a State Court, even under the guise of a 1983 claim,

such power of review being limited to the United States

Supreme Court. The decision of the Court of Appeals

awarding sanctions is not in conflict with any decisions

of this Court, Federal Courts of Appeals or State Courts,

nor is the award an important question of federal law.

The issue as to constitutional right to a hearing is

not before this Court; the issue was not decided by the

Appellate Court, the case having been summarily dis-

missed for lack of subject matter jurisdiction. Any issue

as to ‘‘nullity’’ of State Court jadgments ‘‘denying due

preeess’’ is misplaced. This Honorable Court does not

have jurisdiction to review the State Court decision, which

was rendered in December of 1986. The Plaintiff has not

and eannot ask herein for review of that decision. Only

if the State Court decision had been directly appealed,

eould the Supreme Court address the due process claim,

as was done in Perlata v. Heights Medical Center, Inc.,

495 U.S. —, 108 S.Ct. 896 (1988).

The Petitioners are here seeking review of the deci-

sion of the Court of Appeals for the Fifth Cireuit in up-

holding the District Court’s dismissal and awarding sanc-

tions. Review is therefcre limited to the issues of juris-

diction, res judicata, and sanctions. Stated another way:

ean the Petitioners seek in a United States District Court

review of the State Court decision as to an alleged viola-

tion of due process which might ‘‘nullify’’ the decision;

and is such a suit frivolous?

©

COUNTERSTATEMENT OF THE CASE

The City of Corpus Christi denies and refutes Peti-

tioners’ Statement of the Case.

The case is accurately explained by the Opinions of the

District Court (Petitioners’ Appendix, p. 11) and the

United States Court of Appeals for the Fifth Circuit.

(Petitioners’ Appendix, p. 1).

The City specifically denies that Petitioners were

denied a hearing by the Corpus Christi City Council. All

actions of the City Council were taken at open public

meetings of the City Council, Petitioner Joe O’Brien ad-

dressed the Council and at a later meeting a representa-

tive of the Taxpayers Association addressed the Council

on this same matter.

FEDERAL COURT JURISDICTION

The United States District Court did not have sub-

ject matter jurisdiction of the case. (See Argument).

The District Court has the jurisdiction necessary in order

to determine its own jurisdiction. Familia de Boom v.

Arosa Mercantil, S. A., 629 F. 2d 1134 (5th Cir. 1980),

rehearing en bane, 634 F. 2d 1355, cert. denied, 451 U.S.

1008 (1980). The United States Court of Appeals had

jurisdiction of the Appeal pursuant to 28 U.S.C. 1291

(Supp. 1986).

REASONS FOR DENYING THE PETITION

A. Introduction

This case involves only one major issue: Can the

Petitioners relitigate in Federal District Court a cause

of action litigated in State Court? The Court of Appeals

correctly said no and, in a strongly worded opinion, cor-

rectly ordered sanctions to be awarded the Respondents

herein, who are once again forced to defend an action

without merit. Petitioners did not seek appeal or review

of the State Court ruling to the United States Supreme

Court but filed a separate suit in the Federal District

Courts, through which they now seek relief in the Supreme

Court from the State Court ruling. This Court should

deny the petition for a writ of certiorari and put an end

to this litigation.

The decision of the United States Court of Appeals

addressed two issues: 1) That Petitioners’ case in the

United States District Court was correctly dismissed due

to the prior litigation in State Court, and 2) That sance-

tions should be imposed.

This Court has jurisdiction to review by writ of

certiorari the decision of the United States Court of Ap-

peals for the Fifth Cireuit by virtue of 28 U.S.C. 1254(1).

However, the Court should deny the writ, since no grounds

for reversing same have been presented which would fall

within the scope of Sur. Cr. R. 17: The question of law

at issue has already been settled by this Court. The de-

cision of the Court of Appeals is not in conflict with this

Court or any Federal Appeals Courts, or State Courts.

Further, the opinion of the Court, being soundly based

on prior decisions of this Court, is correct.

The issue decided by the Court of Appeals for the

Fifth Cireuit has already been decided by this Court:

This Court has held that a United States District Court

does not have subject matter jurisdiction to review State

Court judgments even where Constitutional violations are

claimed; such powers of review being limited to the Unit-

ed States Supreme Court; alternatively, the doctrine of

res judicata prohibits trial of these issues.

The Petitioners’ complaint in Federal Court (Appen-

dix A), that the City of Corpus Christi denied them a

public hearing as to the 1984 tax levy and that they were

denied due process by the State of Texas Courts, was

the subject of an identical suit by the same parties in the

Texas State Court. The public hearing issue was the

erux of the prior lawsuit. Complaints of an improper

summary judgment were raised on appeal and determined

by the State Court of Appeals.

Complaints of constitutionality were pled in the peti-

tion and ruled on by the trial Court in its decision that

the plaintiffs were not entitled to recovery. The issue

was waived on appeal, by plaintiff’s failure to raise

same.

Petitioners claim that the constitutional issues were

not addressed by the State Court. However, these issues

~

were specifically pled and addressed by the Court. This

Court has already ruled that a Federal Court cannot re-

view a State Court judgment or review issues addressed

or inextricably intertwined in the State Court proceed-

ing. These issues were more than simply intertwined,

they were the identical issues before the State Court.

The doctrine of res judicata prohibits trial in the Federal

Court of the constitutional issues: they were specifi-

cally pled in the State Court and were tried or could have™.

been tried with the use of due diligence. The filing of

the lawsuit is patently frivolous.

B. Subject Matter Jurisdiction

The United States District Court did not have juris-

diction over Petitioners’ alleged cause of action, since

the action was an appeal or attack of a State Court judg-

ment.

The United States District Court has no power to

review a State Court judgment, even where Plaintiff

claims a deprivation under 42 U.S.C. 1983, constitutional

grounds, or that such judgment was erroneous.

1) The United States District Court has no author-

ity to review judgments of State Courts. Atlantic Coast

line R. Co. v. Locomotive Engineers, 398 U.S. 281, 296

(1970); Rooker v. Fidelity Trust Co., 263 U.S. 4138, 415,

416 (1923).

2) Review is not available even under the guise of

a violation of 42 U.S.C. 1983. Petitioners argue that the

action they pursue in the United States Ditsrict Court is

not an appeal of a previous State Court decision, but a

separate 42 U.S.C. 1983 cause of action arising out of the

denial of due process as a result of the state judicial

proceedings. Even where Petitioner alleges deprivation

of property without due process by a decision of a State

Court, a Federal District Court has no jurisdiction.

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ; District

of Columbia Court of Appeals v. Feldman and Hickey, 460

U.S. 462 (1983), (referred to hereinafter as Feldman).

The Supreme Court has consistently denied a petition

to review the numerous cases of the United States Court

of Appeals for the Fifth Circuit which hold ‘‘that Federal

District Courts do not have jurisdiction under 42 U.S.C.

1983 or any other theory to reverse or modify the judg-

ments of State Courts.’? Lampkin-Assam v. Supreme

Court of Florida, 601 F.2d 760 (5th Cir. 1979), citing

Cheramie v. Tucker, 493 F.2d 586, 589 (5th Cir.), cert. de-

nied, 419 U.S. 868 (1974); Hanna v. Home Insurance Co.,

281 F.2d 298, 303 (5th Cir. 1960), cert. denied, 365 U.S. 838

(1961); Williams v. Tooke, 108 F.2d 758, 759 (5th Cir),

cert. denied, 311 U.S. 655 (1940); Warriner v. Fink, 307

F.2d 933 (5th Cir. 1962), cert. denied, 372 U.S. 943 (1963) ;

Manufacturers Record Publishing Co. v. Lauer, 268 F.2d

187 (5th Cir.), cert. denied, 361 U.S. 913 (1959).

3) This lack of jurisdiction is not changed by the

form of relief sought. Petitioners claim the District Court

suit is not an appeal but a new cause of action. This rule

that the District Court cannot review State Court judg-

ments applies even though the relief sought is not in the

form of an appeal. In Feldman, supra at 468, where the

Plaintiffs sought declaratory and injunctive relief, the

Court found lack of jurisdiction.

Regardless of how the Petitioners wish to label their

cause, the result is the same—Petitioners sought review by

the United States District Court of judicial proceedings

already completed by the Courts of the State of Texas.

4) Any issue pled or intertwined with the State

Court proceeding is not reviewable by the United States

District Court. Petitioners claim that the State Court

failed to rule on the Constitutional issues.

a) The Constitutional issues were ruled on by the

Court, by its statement denying any form of relief to the

plaintiffs. The Constitutional issues were pled: (Petition-

ers’ Appendix, pp. 43, 49). Petitioners stated that they had

been deprived of property and liberty without due

‘‘cause’’ of law in violation of Art. 1, Sec. 19, Constitu-

tion of the State of Texas and the 14th Amendment to the

Constitution. The Court of Appeals noted that since Peti-

tioners had failed to present any argument or authority

as to the illegality of the Tax Code, the constitutional is-

sues were not before the Court (Petitioners’ Appendix, p.

23). They were therefore ruled on by the Court’s decision

in favor of the City of Corpus Christi. Any constitutional

issue was not addressed by the Texas Court of Appeals

specifically because the appellants (Peiitioners) failed to

bring the issue forward (Petitioners’ Appendix, page 23).

The issue as to whether the Trial Court wrongly ruled in

granting the Summary Judgement was specifically ad-

dressed by the State Court of Appeals in a lengthy and

detailed opinion (Petitioners’ Appendix, pp. 17-23) and

eannot be relitigated in the United States District Court.

b) Even a challenge to the tax levy or the State

Court proceedings on Constitutional grounds not brought

to the State Court is not reviewable. This Court has stat-

ed that ‘‘. . . if the Constitutional claims are inextricably

10

intertwined in the State Court’s denial in a judicial pro-

ceeding . . . then the District Court is essentially called

upon to review the State Court decision.’? Feldman at

482. ‘‘Where determination of... [a] claim necessarily in-

volved some review of the merits or its State Appeal, the

Constitutional claims are inextricably intertwined.’’ Penn-

zoil Co. v. Texaco, 481 U.S. —, 107 S. Ct. 1519 (1987).

In this particular case, Petitioners’ claims are not simply

‘‘intertwined’’, but are on their face a direct challenge to

the prior State Court judgment. The United States Dis-

trict Court may only review challenges to State proceed-

ings ‘‘which do not require review of a State Court judg-

ment in a particular ease.’’ Id.

‘‘Where federal relief can only be predicted upon a

conviction that the State Court was wrong, it is difficult

to conceive the federal proceeding as, in substance, any-

thing other than a prohibited appeal of the State Court

judgment.’’ Id.

5) Petitioners’ arguments regarding alleged error

and lack of due process by the State Courts are only re-

sponded to briefly. These issues of error and due process

are not before this Honorable Court as they were not de-

cided by the United States District Court nor the Court of

Appeals. The Court examined the pleadings and decisions

of the State Court, not to determine their validity, but to

determine whether the State Court-judgment was on the

merits and whether it involved identical parties, issues, and

claims, to the extent such facts were not revealed by Peti-

tioners’ pleadings.

The Complaint on its face showed that Petitioners

were afforded due process. Prior rulings of this Court

11

do not support a due process violation in this instance.

Unlike Peralta, supra, where the defendant lacked notice

and any opportunity to defend, the Petitioners instigated

the State action. Petitioners’ only claim of failure of due

process is that a motion for summary judgment was grant-

ed, allegedly in error. Petitioners were granted due pro-

cess by the Courts; they fully utilized the Court system;

they had the opportunity and did appeal. Error in ren-

dition of a judgment does not constitute a violation of due

process. The fact that a party loses his fight does not

indicate that he was denied a fair fight. Petitioners’ bold

statement that the State Court judgment is a nullity is

false. Their entire cause of action in the Federal Court

is a collateral attack seeking to void the judgment. Any

alleged error in granting the summary judgment does not

nullify the judgment.

6) The multiple cases cited by Petitioners for the

proposition that Federal Courts may review State Court

decisions only stand for the well settled principle that the

United States Supreme Court may review decisions of a

State Court for violations of due process. None of the

cases cited allows the United States District Court juris-

diction to review State Court decisions. Indeed, this Court

has held that Federal appellate review of judgments rend-

ered by State Courts can only occur in this Court. Penn-

zou Co. v. Texaco, Inc., supra. (Marshall concurring).

(Such jurisdiction is only invoked, however, where the

appeal or review is direct, unlike this ease.) The District

Court had no authority to review the prior State Court

decisions.

No conflict exists with Peralta v. Heights Medical

Center, Inc., 495 U.S. —, 108 S.Ct. 896 (1988), in which

12

an appeal was taken directly to the Supreme Court, no

question of the District Court jurisdiction was addressed

by the Supreme Court.

Petitioners cite Pennzoil Co. v. Texaco, Inc., Id., and

tailroad Commissioners of Texas v. Pullman, 312 U.S. 496

(1941) for the proposition that District Courts have juris-

diction of causes of action under 42 U.S.C. 1983. This is

a true statement which is not inconsistent with the opinion

of the Court-of Appeals that the District Court lacks sub-

ject matter jurisdiction of a claim under 42 U.S.C. 1983

where, as in this instance, such claim is simply a hidden

review, appeal, or attack of a State Court decision.

The Court of Appeals agreed that Petitioners’ remedy

should have been to the United States Supreme Court.

(Petitioners’ Appendix p. 6.).. This statement is in agree-

ment with and not in conflict with any cases cited by the

Petitioners as to the jurisdiction and authority of the Su-

preme Court.

The Supreme Court would have been the appropriate

forum for a review of the State Court judgment, however,

such review was not timely requested.

Petitioner does not contest that the State Court case

involved the exact same issnes, but instead challenges the

State Court ruling on Constitutional and due process

erounds. Sueh attacks on the validity of a State Court

judgment are not within the jurisdiction of the Federal

Distriet Courts.

C. Res Judicata

Even if the District Court had subjeet matter juris-

diction in this eause, the principle that the Petitioners’

claims would nevertheless be barred under the doctrine

of res judicata, is well established by this Court.

A judgment upon the merits in a suit in a State

District Court is res judicata in a suit in the United

States District Courts, where the courts have concurrent

jurisdiction. Grubb v. Public Utilities Commission of

Ohio, 281 U.S. 470 (1930). A Federal Court must give the

judgments of State Courts the same full faith and credit

they have by law or usage in the State Court. Marrese v.

American Academy of Correspondence Surgeons, 470 U.S.

373 (1985). A State judgment must be given the same

res judicata effect in Federal Court that it would be given

in the Court of the rendering State. Migra v. Warren City

School District Board of Education, 465 U.S. 75 (1984).

Res judicata applies with full foree to civil rights actions.

Id. at 82; Blynthe v. Hinckley, 180 U.S. 333 (1902); Allen

v. McCurry, 449 U.S. 90, 105 (1980).

Petitioners allege that the State Court did not rule

or refused to rule on the Constitutional claim and the

Summary Judgment did not include same.

Res judicata applies noi only to issues which are liti-

gated but which could have been litigated.

A final judgment is res judicata not only as to matters

actually presented to sustain or defeat the right asserted,

but also in respect to any other matter which might have

been presented, or which could have been raised. Grubb

v. Public Utilities Commission of Ohio, supra; Allen v.

McCurry, supra. Any issue not litigated could have been

litigated in the State Court litigation, as State Courts

14

have concurrent jurisdiction with the United States Dis-

trict Courts to determine Constitutional claims. Blynxthe

v. Hinkley, supra; Allen v. McCurry, supra at 105. Indeed,

Petitioners’ lawsuit to void the State Court judgment in

order to enforce its rights is an admission that the State

Court judgment included an adjudication of those rights.

D. Sanctions

The decision of the Court of Appeals in awarding

damages to the City of Corpus Christi is not in conflict

with decisions of this Court, the Courts of Appeals, or

State Courts. The only case cited as conflicting with the

instant ease is that of Pennzoil v. Texaco, 784 F.2d 1188 (2d

eir.), rev’d, 107 S.Ct. 1519 (1987). In that case neither the

Supreme Court nor the Second Cireuit addressed or men-

tioned imposition of sanctions. No conflict exists. Even

prior to the current rules specifying imposition of at-

torneys fees as sanctions, this Court has recognized the

ability of the courts to award expenses, including attor-

neys fees, to a litigant whose opponent acts in bad faith,

or willfully abuses the judicial process. Roadway Express

c. Piper, 447 U.S. 752 (1980); Hall v. Cole, 412 U.S. 1, 5

(1973). Sanctions are especially appropriate and neces-

sary where the law is clear and the defending party has

been put to undue expense of multiple litigation.

15

CONCLUSION

No valid reason for granting the Writ has been prof-

fered. No decisions of the Court of Appeals or State

Courts have been cited by Petitioner as being in conflict

with the decision herein. Indeed, the decision of the Court

of Appeals is fully supported by decisions of this Honor-

able Court.

The City of Corpus Christi has already been forced

to defend itself in the State District Court, State Court of

Appeals, Texas Supreme Court, Federal District Court

and United States Courts of Appeals. The position taken

by Petitioners is not supported by law. Indeed, the Court

of Appeals for the Fifth Cireuit found that the ‘‘appeal

involved legal points not areuable on their merits’’ and

imposed damages against the Petitioners under 28 U.S.C.

1927 and Frep. R. App. P. 38 (Petitioners’ Appendix P.

8). The City of Corpus Christi should not be foreed to

defend itself further.

It is respectfully submitted that the petition for writ

of certiorari should be denied.

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Uv

RULE 49.2 MOTION FOR INTEREST AND DAMAGES

Respondent, City of Corpus Christi, has shown that

the Petition for writ of certiorari is frivolous. The initial

filing of this lawsuit and its appeal have already been

determined to be frivolous, yet Petitioners persist in pur-

suing this litigation. The question of jurisdiction has al-

ready been determined by this Court and is well settled.

Petitioners’ claims: that they may file first in State Court

16

and then in Federal Court, that a summary judgment

rendered is a denial of due process, are the result of

flawed logic and distortions of the principles cited.

The City of Corpus Christi has been damaged by the

filing in this Court as follows:

1) It has been forced to devote additional attorney

hours in preparation of this response. Attorney hours

are valued at $100.00 per hour according to the District

Court, (Respondent’s Appendix B) and the City has

or will spend 30 hours to the date of filing this response;

2) Costs of printing (Estimated to be $662.00) ;

3) Interest lost through postponement of the col-

lection of the sanctions awarded here; plus

4) Expenses ofpostage, telecopy and long distance.

It is clear that pursuit of this case is a gross abuse

of the judicial process, with demonstrable harm to the City

of Corpus Christi. Although this case does not involve

significant money damages, the continued litigation has

forced the staff to devote significant time and resources

to the defense of an important asset: its 1984 tax levy.

Wherefore, the Respondent moves the Court to deny

the Petition for Writ of Certiorari or if granted, to affirm

the decision of the Court of Appeals for the Fifth Circuit,

and upon such denial or affirmance, to allow damages in

accordance with Sup. Cr. R. 49.2.

17

Respectfully submitted,

CaroL Estes Bray

Senior Assistant City Attorney

Counsel of Reeord

Frevix Hatitum Gerorce, JR.

City Attorney

City of Corpus Christi

Legal Department

P.O. Box 9277

Corpus Christi, Texas 78469-9277

(512) 880-3360

Attorney for Respondent

City of Corpus Christi

A-1

APPENDIX A -

Petitioners’ First Amended Complaint

in the United States District Court

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CORPUS CHRISTI TAX-

PAYER’S ASSOCIATION, TOM

HUNT and JOE O’BRIEN,

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Plaintiffs )

= ) Civil No. C-87-6

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CITY OF THE CORPUS

CHRISTI and STATE OF

TEXAS,

Defendants

FIRST AMENDED COMPLAINT

I— JURISDICTION

1. This is a civil action seeking declaratory and

equitable relief to prevent the denial of due process to

the Plaintiffs, and to other taxpayers residing in the City

of Corpus Christi, Texas. Jurisdiction is invoked under

the U.S. Constitution, Fourteenth Amendment, Section 1,

and based on deprival of civil rights, 42 USC Sec.1983.

There is jurisdiction in the Federal district court system

under 28 U.S.C. Section 1331 or 1441. The proper venue

for this action in this Court. 28 U.S.C. See. 1391(b).

II—PARTIES

2. The Plaintiff, Corpus Christi Taxpayer’s Asso-

ciation, is a public interest organization formed by tax-

A-2

payers of Corpus Christi to represent the interests of its

members and other taxpayers in Corpus Christi, Texas.

The two individual Plaintiffs, J. E. O’Brien and Tom

Tlunt, are residents, homeowners and taxpayers in the

City of Corpus Christi, Texas, and they are both mem-

bers of the public interest organization.

3. The Defendant, City of Corpus Christi, Texas,

is a city duly organized under the laws of the State of

Texas. The second Defendant is the State of Texas.

4. Each Defendant is sued separately and in their

official capacity as administrators and enforcers of the

law. Relief is sought against each Defendant as well as

any agenis, employees, attorneys, managers and all other

persons acting at their direction or under their authority

or control.

5. Both Defendants operate necessarily under the

laws of the Constitution of the United States [in particular

Amendment XIV, Section 1], the Constitution of the State

of Texas [in particular Article 8, Section 21], the Texas—

Property Tax Code [in particular Chapter 26] and cer-

tain ordinances of the City of Corpus Christi, Texas,

adopted in connection with setting ad valorem tax rates

for the year 1984.

TI—CLASS ACTION

6. This is a class action brought by the Plaintiffs in

their own behalf and on behalf of others similarly situ-

ated pursuant to Rule 23 of Federal Rules of Civil Pro-

cedure. This class represented by Plaintiffs consists of

(1) all residents of the City of Corpus Christi,

Texas who paid ad valorem taxes in the vear 1984;

A-3

(2) all taxpayers of the State of Texas who have

been deprived of a public hearing (as guaranteed by

the Texas Constitution) by taxing unit action, such

as that here adopted by city ordinance of the City of

Corpus Christi, Texas.

The class is so numerous that joinder of all members

is impracticable. The questions of law and fact here are

common to the class. The defenses of the Defendants, who

are representative parties, are typical of the claims or

defenses of the class. The representative parties will

fairly and adequately protect the interests of the class.

IV—CAUSES OF ACTION

7. The Plaintiffs are given the right by under Ar-

ticle 8, Section 21(a) of the Texas Constitution, to ‘‘a pub-

lie hearing’’ when as here a _ political subdivision [the

City of Corpus Christi, Texas] increases the property tax

rate over that prevailing in the preceding year. There

was an increase in the tax rate imposed by the City of

Corpus Christi, Texas in the year 1984, as opposed to the

year 1983, based on ‘‘tax rates’’ as defined in the ‘‘Truth

in Taxation’’ statutes of the state of Texas.

8. No ‘‘publice hearing’’ was held by the City officials

in connection with the 1984 tax rate increase, as required

by the Texas Constitution and ‘‘Truth in Taxation”’ stat-

utes, although Plaintiffs in an appearance before City

Council demanded such right. By refusing to hold a hear-

ing, The City deprived Plaintiffs of their civil rights in

violation of 42 USC See. 1983. The Citv has consistently

over the years followed a pattern of conduct abusive of

taxpayers’ rights. The City did comply with Plaintiffs’

A-4

demand for publication of the 1984 tax notice, but that

ca

notice contained false and ineorrect data.

9. Upon being deprived of a public hearing, Plain-

tiffs filed suit against the City in a trial court of the State

of Texas having jurisdiction, the 148th District Court of

Nueces County, Texas. Both parties filed motions for

summary judgment. The trial court granted the City’s

motion for summary judgment.

10. The trial court held no hearing and received no

evidence, although an issue before the Court was the al-

leged false and incorrect ‘‘data’’ contained in the City’s

published notice. First, Plaintiffs were denied a hearing

on this question of fact. Denial of a hearing by the trial

court constituted denial of due process, as Plaintiffs were

denied the opportunity to contest the validity of tax rate.

Seeond, Plaintiff’s right to present evidence was denied.

11. Further, the trial court failed to rule on issues

raised by Plaintiffs’ motion for summary judgment, thus

denying Plaintiffs the opportunity for a hearing on their

motion. Motions of Plaintiffs justified a judgment favor-

able to Plaintiffs.

12. Upon appeal by Plaintiff to the Thirteenth Su-

preme Judicial District of Texas all actions of the trial

court (its rulings, ignoring of motions, denial of hearing

and judgment) were sustained.

- 13. The Plaintiffs, by application for writ of error,

then appealed to the Supreme Court of Texas. That case

is identified as No. C-4912._The issues on appeal are fully

explained in the-twe attachments to the Original Com-

plaint, as follows: (1) marked as ‘‘Exhibit A of Com-

A-5

plaint’’ entitled ‘‘Petitioners’ Application for Writ of

Error’’ by Herbert L. Hawkins, Jr. and (2) marked as

‘‘Exhibit B of Complaint’’ entitled ‘‘Respondent’s Brief

in Response to Application for Writ of Error” by Carol

Estes Bray, Assistant City Attorney.

14. The Supreme Court on December 17, 1986 refused

the application of Plaintiffs for a writ of error. See at-

tachment marked ‘‘Exhibit C of Complaint’’. Such de-

cision has become final.

15. The Texas courts, by denying Plaintiffs any hear-

ing or any trial in their proceeding against the City to

obtain a ‘‘publie hearing’’, deprived Plaintiffs of their

civil rights in violation of 42 USC See. 1983.

V—PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that the Court grant

the following relief:

1. Certify this cause as a class action;

2. Issue an order declaring that the City tax proceed-

ings and State of Texas proceedings here complained of

are invalid and void, as being eontrary to the U.S. Con-

stitution, Article XIV and in violation of 42 USC See.

1993 ;

3. Issue an order directing the City to hold a ‘‘publie

hearing’’ as to its 1984 tax levy, and further comply with

the ‘‘Truth in Taxation’’ Texas statutes, as adopted by

the legislature and construed by the Texas State Property

Tax Board;

4. Direct the Texas authorities to fix for the City

for the year 1984 what is a valid tax rate (without any un-

A-6

authorized increase) pursuant to the ‘‘Truth in Taxation”’

statutes; which rate is to be used in subsequent years set-

tings of tax rates; and make a refund of excess taxes col-

lected by the City (amount of tax collected by the 1984

rate reduced by the illegal increase over a tax using the

1983 tax rate) ;

5. Grant such other relief as may be necessary to pro-

tect the right of Plaintiffs to a public hearing in the years

1984 and subsequent taxable years;

6. Issue orders to prohibit other taxpayers in the

class from being deprived of their right to a ‘‘public

hearing’’ in other similar cases involving ad valorem tax

levies by other taxing units in Texas.

7. Award Plaintiffs their costs in connection with

their efforts to obtain a public hearing, the cost of litiga-

tion in state and Federal courts, including costs incurred

in litigating the year 1985, and including reasonable at-

torney’s fees related to this proceeding, and such other

relief as may appear to the court to be equitable and just.

/s/ Guynn A. PucH

GLYNN A. PUGH,

Attorney for Plaintiffs

P.O. Box 4932

Corpus Christi, Texas 78469

(512) 881-8483

B-1

APPENDIX B 7

‘* Judgment’’ on remand

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

CORPUS CHRISTI

TAXPAYERS ASSOCIATION,

TOM HUNT, and JOE O’BRIEN

Plaintiffs

THE CITY OF CORPUS

CHRISTI, AND THE

STATE OF TEXAS

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VS. ) CASE NO. C-87-6

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Defendants _)

JUDGMENT

(Filed Nov. 17, 1988)

On November 10, 1988, came on before me the issues

on remand herein and the Parties appeared with their at-

torneys of record;

Defendant, City of Corpus Christi has moved for

sanctions against the Plaintiffs and their attorneys of rec-

ord, pursuant to Rule 11, Federal Rules of Civil Pro-

cedure.

Additionally, on appeal the Defendant, City of Corpus

Christi, moved for damages pursuant to Rules of Appel-

late Procedure 38. The United States Court of Appeals

for the Fifth Cireuit found that the Plaintiffs’ appeal in-

B-2

volved legal points not arguable on their merits, and that

the appeal was frivolous, and granted the Motion of the

City for damages and remanded the case to this Court for

determination of the reasonable attorneys’ fees and ex-

penses reasonably incurred by the City of Corpus Christi

by virtue of the appeal. That Court also granted the

City’s motion to assess such costs against Plaintiffs’ coun-

sel personally, under 28 U.S.C. 1927 and remanded to this

Court the decision as to apportionment of the award.

After hearing evidence and argument of counsel, the

Court finds as follows:

; I.

Both the attorneys hours testified to by the City of

Corpus Christi and the hourly rate of $100 an hour are

reasonable.

Il.

The reasonable attorneys fees and other expenses rea-

sonably incurred by the City of Corpus Christi by virtue

of the appeal of the Plaintiff in this cause are as follows:

Attorneys’ fees in the amount of $2,600.00 plus costs in the

amount of $96.00. These amounts are apportioned as fol-

lows: $2,446.00 to be paid jointly and severally by Plain-

tiffs, Corpus Christi Taxpayers Association, Tom Hunt,

and Joe O’Brien and $250.00 to be paid by Plaintiff’s

Counsel, Glynn Pugh.

II.

The Court further finds that this suit is not warranted

by existing law or any good faith argument for its exteu-

sion, modification or reversal. Therefore, this Court finds

B-3

that a violation of Rule 11 exists. The Motion of the City

of Corpus Christi for sanctions is hereby granted. In

awarding this amount and making an allocation the Court

has taken into consideration conflicting public policies. On

the one hand Rule 11 requires as public policy the imposi-

tion of sanctions substantial in amount to discourage fu-

ture violations of the Rule. On the other hand, counsel for

the Taxpayers has served on a pro bono basis, and this

litigation was hased on an alleged denial of civil rights,

both of which situations involve public policies encouraged

by the Federal courts. The Court finds as follows:

Reasonable attorneys fees incurred by the City of

Corpus Christi in this litigation prior to appeal are as fol-

lows: Attorneys fees in the amount of $2,700,00 which fees

the Court finds are reasonable. The Court also finds that

payment of such fees should be imposed as sanctions un-

der Rule 11. These fees are apportioned as follows:

$250.00 to be paid by Glenn Pugh, Plaintiff’s Counsel, per-

sonally, and the balance of $2450.00 paid by the Corpus

Christi Taxpayer’s Association.

Reasonable attorneys fees incurred by the City of

Corpus Christi in this litigation on remand are $600.00 to

and through this proceeding, which fees the Court finds

are reasonable. The Court also finds that such payment of

these fees should be imposed as sanctions under Rule 11.

These fees are apportioned as follows: $600.00 to be paid

jointly and severally by the Corpus Christi Taxpayers

Association, Tom Hunt, Joe O’Brien, and Glynn Pugh of

which no more than $100.00 is to be collected from Glynn

Pugh.

B-4

It is therefore ORDERED, ADJUDGED and DE-

CREED that the Motion of City of Corpus Christi for

Sanctions under Rule 11 be and is hereby granted, and

1) the Plaintiffs herein, Corpus Christi Taxpayers

Association, Tom Hunt, and Joe O’Brien and counsel,

Glenn Pugh, jointly and severally are hereby ORDERED

to pay to the City of Corpus Christi the sum of $600.00, of

which no more than $100.00 is to be paid by Glynn Pugh;

2) the Plaintiff Corpus Christi Taxpayers’ Asso-

ciation is hereby ordered to pay additionally the sum of

$2450.00 to the City of Corpus Christi; and

3) Glynn Pugh is ordered to pay the sum of $250.00

to the City of Corpus Christi.

Additionally, as damages under Rule 38 and 28 U.S.C.

1927:

4) Plaintiffs Corpus Christi Taxpayers Association,

Tom Hunt, and Joe O’Brien are jointly and severally

hereby ORDERED to pay the sum of $2,446.00 to the City

of Corpus Christi and

5) Glynn Pugh is ordered to pay the sum of $250.00

to the City of Corpus Christi.

IT IS ORDERED that the amounts found and above

determined are to be paid to the City of Corpus Christi on

or before 90 days from the date of this hearing.

Signed this the 17 day of Nov., 1988.

/s/ H.-W. Head, Jr.

Hayden W. Head, Jr.

United States District Judge

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APPROVED AS TO FORM:

/s/ Glynn A. Pugh

Glynn Pugh,

Attorney for Plaintiff

/s/ Carol Estes Bray

Carol Estes Bray,

Attorney for Defendants