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

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cael vupremea Ceurt, U.S.

FILED

No. 88-1478 APR 25 1989

JOSEPH F. SPANIOL, JR,

CLER

In The ms

Supreme Court of the United States

October Term, 1988

CORPUS CHRISTI TAXPAYERS ASSOCIATION,

TOM HUNT and JOE O’BRIEN,

Petitioners,

VS.

CITY OF CORPUS CHRISTI, TEXAS

and STATE OF TEXAS,

Respondents.

»

a

Petition for Writ of Certiorari

To the United States Court of Appeals

for the Fifth Circuit

a

_

SUPPLEMENTAL BRIEF OF PETITIONERS IN REPLY

to

NEW MATTER (Rules 16 and 22)

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oad

GLYNN A. PucH, Counsel for

Tom Hunt and other Petitioners

723 N. Upper Broadway, Ste. 512

Corpus Christi, Texas 78401

(512) 881-8483

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

OR CALL COLLECT (402) 342-2831

—e

COUNTERSTATEMENT OF ISSUES IN REPLY BRIEF

1- Are the Constitutional rights of Petitioners (Amend-

ment XIV, due process; 42 USC Sec. 1983; 28 USC Sec.

1343) to prevail inviolate, or does the lower Federal court

lack jurisdiction of the subject matter due to existence of

a prior state judgment?

2- Does this petition raise only frivolous issues, in viola-

tion of Rule 49.2?

3- Are Petitioners entitled to relief as requested herein?

This reply brief of Petitioners presents new matter:

recent litigation. Also, this reply brief responds to two

new issues raised in the City’s brief in opposition to

certiorari.

li

TABLE OF CONTENTS

Page

Cceinseratalomnens. °..... woo kc cca eee i

sone OF Comtenis os ooo ccc Se ee ii

Jame of Authorities ...........0..00 2 hee iii

l-New Matter: Other litigation..................... l

(1) Tx. Supreme Court decision

(2) Another abusive Texas court summary

judgment

(3) Browning-Ferris Ind. case (pending before

Court)

2-New factual issue: City asserts it has held a “hear-

WEE i wk eek a ake ew 5 oe te a 3

3-Reply to City’s Cross-Appeal asking for damages... 4

4-Relief requested by Petitioners................... 4

Exhibit A- Page from another petition.......... App. 1

Exhibit B- Affidavit as to abuse of discretion by

trial judges being a common practice in Texas

COUNT OYBIEM .....6.000 eae ee eee App. 2

111

TABLE OF AUTHORITIES

Page

COURT CASES:

Browning-Ferris Industries, Inc. v. Kelco Disposal Inc.

(now pending before U.S. Supreme Court) ......... 2

M&M Construction Co. v. Great American Insurance

Co (received by the Clerk on February 21, 1989) ..... 2

Rizzo v. Goode (1976) 423 US 362...............2000003

Rodriguez v. Naylor (Tx.Suprm. Ct, 01/25/89) 763

cov wdauxvacubaces |

U.S. CONSTITUTION:

I pw see sv baabnaen 2

Amendment XIV, due process............ 2, 4

U.S. STATUTES

CN 3, 4

rR I we cece cee. 2

SUPREME CourT RULEs:

I SO Se 4

er PRO Bc OT A en Bee ee

TEXAS CONSTITUTION:

Article &, Section 21 «2.0.6. ccc cece 3

1-NEW MATTER: Other Litigation

The Petitioners (taxpayers of Corpus Christi com-

plaining of a denial of due process by a state trial court

which wrongfully dismissed their case) call to the atten-

tion of the Court three new matters not available at the

time of their last filing with the Court.

First, a recent Texas Supreme Court decision recon-

firms Texas law. The court wrote: A “summary judgment

is proper only if the movant establishes that there are no

genuine issues of fact and that he is entitled to judgment

as a matter of law.” Rodriguez v. Naylor (Tx.Suprm. Ct,

01/25/89) 763 SW2d 411, 412. Texas state court rulings in

the instant case, dismissal with affirmance on appeal, are

contrary to Texas law as set forth in Rodriguez, which

cites and relies on other Texas court decisions rendered

before the judgments in the instant case. By failing to

apply the Texas law to Petitioners’ appeal, the Texas

supreme court denied Petitioners due process of law.

As stated in this Petition for Certiorari (p. 11) “a

genuine issue as to a material fact” existed: Petitioners

asserted a tax increase of 16.8% (App. p. 32) whereas the

Respondent (City) denied that there was any increase in

tax. The City admitted a genuine issue of fact existed.

App. p. 36. A tax increase required that a public hearing

be held, but no such hearing was held on the tax increase.

In view of that controverted, material fact the trial court’s

granting of a summary judgment and dismissal, was

error, [That error, although properly asserted in the state

appellate courts, was affirmed and Petitioners were

denied due process of law.

A second material new matter is called to the

attention of the Court: an appeal to the U.S. Supreme

Nh

Court, newly filed, which has not yet been docketed,

M&M Construction Co. v. Great American Insurance Co.

(received by the Clerk on February 21, 1989). This appeal

presents another instance of the abusive practice of Texas

trial court judges: the arbitrary granting of motions for

summary judgments. The Petition describes this practice

as common in Texas, Pages 16-17, as “patterns of abuse

by state courts” and “In the Texas court system arbitrary

procedures, such as arbitrary dismissals, are not an

uncommon event.” The M&M case presents one more

abuse of discretion by a Texas trial court judge resulting

in an arbitrary summary judgment, dismissal and denial

of due process. In the M&M case dismissal was granted

only by reason of the fact that pleadings filed in the case

were simply ignored. See attached Exhibit A, which

reproduces page 14 of M&M Statement of Jurisdiction.

See also attachec affidavit, Exhibit B.

Third, in Browning-Ferris Industries, Inc. v. Kelco Dis-

posal Inc. (now pending before U.S. Supreme Court)

involving the Constitutionality of an alleged “excessive

fine” imposed by a state court system, the lower Federal

courts had jurisdiction. During oral arguments Justice

O’Connor referred to a “substantial expansion” of

appeals in the Federal court system as well as the

Supreme Court if it was held that the VII] Amendment

applies to punitive awards by state courts. Incidentally,

the scope of the XIVth Amendment is quite clear: its very

purpose was to apply to the states to limit abuses of

citizens by the states. Furthermore, it contains no word-

ing to exclude state court judges. Wording of the civil

rights statute, 42 USC Sec. 1983 is clear enough and broad

enough, “Every person” with no wording to exclude state

court judges. The Fede sal district court has jurisdiction,

28 USC Sec. 1343. The wording of this statute has been

ignored, but it should not be. Note it contains no wording

to exclude state court adjudications. See Rizzo v. Goode

(1976) 423 US 362. The essential issue here, the wrongful

dismissal by the trial court, certainly was not ruled upon

by the trial court, nor was it specifically ruled upon by

appellate courts.

2-New Factual Issue: Denial of Public Hearing

The City in its Brief raises for the first time a new

issue: it ” . . . specifically denies that Petitioners were

denied a hearing ... ”. City Briet, p. 4. The Texas

Constitution, Article 8, Sec. 21, required that the City

“holds a public hearing on the proposed [tax] increase”. The

City’s Brief attempts to deceive. As a matter of fact city

council did actually hold a “meeting”, to be distinguished

from the prescribed “public hearing on the proposed

increase”. At the Corpus Christi city council “meeting”

(the word used in City’s brief) Petitioners’ attorney

appeared and made a twelve minute presentation (video-

cassette available) discussing the City’s irregular tax pro-

cedures which were in violation of Texas law. Petitioners

contend the city officials did not hold the required “publ-

ic hearing”. As to a “public hearing on the proposed [tax]

increase”, none has ever been held by the City. To resolve

this factual issue, this case should be remanded, and the

dismissal set aside.

This paragraph is in error, and should not have been

inserted in the City’s Brief. The City’s Brief contains

numerous other like errors, all of which are beyond the

scope of this Brief of Petitioners.

3-Reply to City’s Cross-Appeal Seeking Damages

The City asks for damages under Rule 49.2, based on

an allegation of this petition being frivolous, stating that

the question of jurisdiction “is well settled”, and asserts

“flawed logic and distortions of the principles cited”.

Petitioners remind the Couri that the issue here involves

a Constitutional right denied Petitioners by a state court

in violation of the XIVth Amendment, which contains no

words excluding state court systems from its scope. And

the supporting jurisdictional statute, 28 USC Sec. 1343,

giving Federal district courts jurisdiction over civil rights

cases, contains no words excluding state court judges

from its scope.

The flawed logic here is found in decisions of the

lower Federal courts. Their decisions ignore 28 USC Sec.

i343 and use “subject matter jurisdiction” and “res judi-

cata” to defeat the civil rights of petitioners. These Con-

stitutional rights here, to have a public hearing and to

due process of law, should prevail and these rights

should remain inviolate.

4-Relief Requested by Petitioners

Petitioners ask the Court for the following relief: (1)

an order directing the City to hold a public hearing on

the 1984 tax increase or an order directing the trial court

to proceed with the case; (2) order denying City’s cross-

appeal seeking damages under Rule 49.2; (3) an award to

Petitioners of court costs and damages under Rules 49.2

and 50 and (4) an award to be set by lower courts for

sanctions, fees and costs based on Petitioners being the

prevailing party and being victims of abuse due to denial

of their civil rights.

Respectfully submitted,

GLYNN A. Puc,

Counsel for Petitioners

P.O. Box 4012

Corpus Christi, Texas 78469

(512) 881-8483

App. 1

Exhibit A

recover from a surety a judgment against an insolvent

principal.

Second, in the Texas court system there exists a pat-

tern of granting summary judgments by trial judges in

civil suits when dismissal is not justified. The instant case

is not a solitary error. This arbitrary action of trial judges

is common practice in the court system. Upon appeal the

dismissals are usually affirmed. This arbitrary type of

action by Texas courts tc clear up their dockets is com-

mon. This practice serves to deny litigants, both plaintiffs

and defendants, access to courts. In turn numerous per-

sons are thereby denied their rights under the Due Pro-

cess Clause.

Third, a state appellate court has erred, rendering

two judgments which are clearly inconsistent in result.

As a result, sustaining the trial court’s dismissal of this

case resulted in denial of due process to Appellant. The

inconsistent application of law here by the

* * *

App. 2

Exhibit B

CORPUS CHRISTI TAXPAYERS ASS’N

V

CITY OF CORPUS CHRISTI

STATE OF TEXAS

COUNTY OF NEUCES

AFFIDAVIT

as to

GRANTING OF SUMMARY JUDGMENTS

BY TEXAS TRIAL JUDGES

Before me the undersigned authority on this day

personally appeared, Glynn A. Pugh, to me well known,

who, after being duly sworn, did depose and say as

follows:

Counsel for Petitioners on April 10, 1989 interviewed

a respected Nueces County trial judge with more than

eight years of service regarding the practice of granting

summary judgments by trial court judges. That judge

made in substance the following statements:

1- Texas trial judges find themselves with many cases on

their docket, and they seek to reduce their number.

2- It is common practice of Texas trial judges to purge

long docket lists. A principal way of doing this is by the

granting of summary judgments, which is done arbi-

trarily in the sole discretion of each judge.

3- It is common practice in Texas for a trial judge to

dismiss any case which he personally dislikes, or has a

particular aversion to in some way or other.

4- These dismissals by trial courts are done completely at

the personal whim of each trial court judge.

App. 3

5- A review of dismissals made by Texas trial courts

should indicate the majority of them as being arbitrary,

illogical and without regard to law. This practice, consist-

ing of gross abuse of discretion, is unconscionable.

/s/ Glynn A. Pugh

SWORN TO and subscribed before me this 21st day of

April, 1989.

/s/ Jan C. Titus

Notary Public, State of Texas

Printed name: Jan C. Titus

My commission expires: 3/31/90