Reply Brief — Silver v. Farmers & Merchants Insurance

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Case No. 88 - 2001

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

RANDALL SILVER and MIKALA SILVER,

individually and as parents and next of kin of

MICHAEL R. SILVER, Deceased minor child,

Petitioners,

vs.

FARMERS AND MERCHANTS INSURANCE COMPANY,

Respondent.

PETITIONERS' BRIEF IN REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI

NAIFEH & WOSKA

A Professional Corporation

CLIFTON D. NAIFEH

100 Colcord Building

15 N. Robinson

Oklahoma City, Oklahoma 73102

(405) 235-2404

ATTORNEY FOR PETITIONERS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES. ....0cceceecceevesse i

GRGUMENEs st ese ee eee see ees ewneesel

I. THE UNITED STATES SUPREME COURT

HAS INDEPENDENT SUBJECT MATTER

JURISDICTION WHEN DUE PROCESS IS

VIOLATED BY THE OKLAHOMA SUPREME

COURT'S ARBITRARY AND

UNCONSTITUTIONAL APPLICATION OF A

STATE PROCEDURAL LAW

TABLE OF AUTHORITIES

CASES:

Aristocrat Health Club of Hartford, Inc. v.

Chaucer, 451 F.Supp. 210 (D. Conn. 1978)... 6

Chandler v. Florida, 101 S.Ct. 802, 818,

449 U.S. 560, 581, 66 L.Ed.2d 740 (1981) ...... .1, 6

Conley v. Gibson, 78 S.Ct. 99, 355 U.S. 41,

2 L.Ed.3d 50 (1957) e = ° e 2 ° e & e . a 2 s e e o . ° ° 5

Daniels v. Williams, 106 S.Ct. 662, 474

S. Tot, oot, Oe Game GON (IONE. 6k ce ec ve f

Duncan v. Tennessee, 92 S.Ct. 785, 405

1 es A a | ee

Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.

SU be we 66 Nee ee ee ee

Hathorn v. Lovorn, 102 S.Ct. 2421, 457 U.S. 255,

72 L.Ed.2d 824, reh’g denied, 103 S.Ct. 15, 458 U.S.

3501, TE TRE ee ee 6 ke 8 ee kee ee 5

Johnston v. = 556 F.Supp. 406 (N.D.

TOd, EWeS? so oe 6 ° wae a ae ee ee ee ee 7

ii

Jordan v. Watkins, 681 F.2d 1067 (5th Cir.

1982). * _- a . . 7 _ . i * * e * o ” . . 5S 8 8s + 8. 8 & 2B. © 3

Michigan v. Tyler, 98 S.Ct. 1942, 436

U.S. 408, 56 Leese Oe CISTR) on cea ean wee ee

Muench v. Israel, 14 F.Supp. 1194, aff'd,

715 F.3d 1124, cert. denied, Worthing v. Israel,

164 S.Ce. 0002 Tho eee Pe ee ee 6

Ohio v. Johnson, 104 S.Ct. 2536, 467 U.S. 493,

81 L.Ed.2d 495, reh’g denied, 105 S.Ct. 20 (1984). ...7

Sarfaty v. Sarfaty, 534 F. Supp. 701 (E.D.

Pa. 1983). e s o o e e ° . . . . e . e e . e s e + e . 7

Silver v. Slusher, 770 P.2d 878, 887 (1988). ....5

Tarr v. Manchester Ins. Corp, 544 F.2d 14

(ist Cir. 1975). 7 * e . am o e . . 7 . s . ° . ° . 7 . . s 3

Tibbs v. Florida, 102 S.Ct. 2211, 457 U.S.

31, 7% L.BGee We UO) sk eee eee eee

Wakinekona v. Olim, 664 F.2d 708, 715, cert.

denied, 102 S.Ct. 2294, 456 U.S. 1005, 73 L.Ed.2d

{399, reversed, 103 S.Ct. 1741, 461 U.S. 238, 75

L.Ed.2d 915, on remand, 716 F.2d 1279 (9th Cir. 1981)3, 4

Williams v. Wainwright, 650 F.2d 58 (5th Cir.

1981) ° 2 > * * o e e e . e e e s e * e e e ao 7 e e ° . + o 6

Zacchini v. Scripps-Howard Broadcasting

Co., Ct. . ode ; -Ed. 65,

on remand, 376 N.E.2d 582, 54 Ohio St.2d 286,

S U.n.ee 206 C00) . ww 8 ee ee eee

STATE STATUTES:

Introductory Committee Comment to the

Oklahoma Pleading Code, OKLA. STAT., tit 12,

§§ 2001 et seq. a an e t e e 2 . e e e * 2 * . e 7 . a 3

1

PROPOSITION

THE UNITED STATES SUPREME COURT

HAS INDEPENDENT SUBJECT MATTER

JURISDICTION WHEN DUE PROCESS IS

VIOLATED BY THE OKLAHOMA SUPREME

COURT'S ARBITRARY AND

UNCONSTITUTIONAL APPLICATION OF A

STATE PROCEDURAL LAW

The Respondent discusses four (4) means by which due

process may be violated and contends that the Silvers have no

right of review under any of these theories. Respondent fails

to recognize that due process can be violated "by the impact"

of a state court's ruling regarding that state's own procedural

laws.! While it is true that the Silvers do not contest the

legitimate purposes served by, nor the basic constitutionality

of, the Oklahoma Pleading Code, the Oklahoma Supreme Court

Rules, the Insurance Code nor any other applicable set of rules

or statutes, the Silvers disagree with the Respondent's

assessment that no allegation was presented "that constitutional

statutes were unconstitutionally applied to them so as to deny

Petitioners unequal [sic] protection"2 or that no challenge has

Isee, Chandler v. Florida, 101 S.Ct. 802, 818, 449 U.S. 560,

581, 66 L.Ed.2d 740 (1981).

2Respondent's Brief in Opposition to Petition for Certiorari,

page 13.

2

been made to the denial of "the full panoply of judicial

process”. On the contrary, the Silvers' appeal rests on the

failure of the Oklahoma Supreme Court to apply the legal

procedures proscribed and thereby arbitrarily denied due

process of law to the Silver family.

The trial court overruled the Respondent's Motion to

Dismiss, thereby ruling that the Petitioners’ Petition did, in

fact, state a claim for relief. The parties were ordered to

submit briefs on the issue of uninsured motorist coverage and

the trial court treated this order as a motion for summary

judgment, ruling in favor of the Respondent. The Silvers'

appeal was taken from that ruling, but the Oklahoma Supreme

Court arbitrarily utilized procedures which violate basic tenets

of due process in construction of the pleading without a

further subsequent order for remand to permit Petitioners a

required opportunity to amend its pleading. It is this failure

to strictly enforce the statutory mandates of the Oklahoma

Pleading Code which violates the Silvers’ right to due process.

The Silvers agree that the Oklahoma Supreme Court has

the sole prerogative to determine issues of state substantive

31d.

3

law,4 by which a federal court is usually bound, and cannot

correct.2 Such authoritative interpretation is said to be made

part of the statute "as if it had been amended by the

legislature”.6 However, the facts of the case at bar do not

involve a state substantive issue of law but, rather, entails a

procedure which violates basic tenets of justice and fair play.

The Oklahoma Pleading Code adopts and incorporates the

fundamental aspects of the federal pleading code.’ The rules

are not "peculiar to the State” of Oklahoma nor entail any

4Wakinekona v. Olim, supra.

°Tarr v. Manchester Ins. Corp, 544 F.2d 14 (1st Cir. 1976).

6Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982), quoting

Winters v. New York, 68 S.Ct. 665, 669, 333 U.S. 507, 514, 92

C-Ed. 840 (1948).

TIntroductory Committee Comment to the Oklahoma

Pleading Code, OKLA. STAT., tit 12, §§ 2001 et seq.

In order to take fullest advantage of the

case law interpreting the Federal Rules and

the Advisory Notes, the Oklahoma Pleading

Code tracks the Federal Rules closely.

Where the text of the Federal Rules has

been adopted in the Oklahoma Pleading

Code, the construction placed on it by —-———~

federal and state courts should be presumed

to have been adopted as well. See,

Laubach v. Morgan, 588 P.2d 1071, [073

(Okla. 1978); Baker v. Knott, 494 P.2d 302,

304 (Okla. 1973).

4

variance between particular words.8 The facts of the present

case do not support the rule that the state has the prerogative

to enforce a particular state law. Even if such were the case,

the state must comply with the federal due process

requirements since “[s]tate courts are obligated to enforce

applicable federal law."9

Respondent suggests in the heading of Subproposition

"A"l0 that the Oklahoma Supreme Court's decision is based

upon independent and adequate state grounds and, therefore,

should be precluded from review. Certainly, the state is given

the power to promulgate and enforce laws according to the

wishes of the citizens of that state, and, if the judgment below

rests on independent and adequate grounds, this Court would

—

Sree S8Respondent's Brief in ‘Opposition, p. 12, citing Duncan v.

~~ Tennessee, 92 S.Ct. 785, 405 OS. 127, 31 L.Ed.2d 86 (1972),

involving two state criminal statutes which differentiate between

robbery using a "rifle" and robbery using a "pistol".

3Wakinekona v. Olim, 664 F.2d 708, 715, cert. denied, 102

S.Ct. 3294, 456 U.S. 1005, 73 L.Ed.2d 1299, reversed, 103 S.Ct.

1741, 461 U.S. 238, 75 L.Ed.2d 813, on remand, 716 F.2d 1279

(9th Cir. 1981), citing U.S. CONST. Art. VT, cl. 2.

10Respondent's Brief in Opposition, page 11.

2

5

have no jurisdiction to decide the questions before it.11

However, even though the state has a legitimate interest in

enforcing its procedural rule,l2 the procedural ground is not

"adequate" unless the rule is strictly and regularly enforced and

provides federal constitutional safeguards, 13

The Oklahoma Supreme Court has failed to apply the law

first set out in Conley v. Gibson,!4 as well as the Oklahoma

Pleading Code, which states that technical pleading form is not

required in order to give "fair notice of what the plaintiff's

claim is and the grounds upon which it rests."15 The

"fundamental requirement of civil procedure [is that] ‘[aJll

pleadings shall be so construed as to do substantial justice, '"16

11Zacchini v. Scri ps-Howard Broadcasting Co., 97 S.Ct. _.__

2849, 453 US~ SBE 33 -LEG3a-S0Son remand: 37 NE.2d 582,

54 Ohio-St.2d-286, 8 0.0.3d 265 (977.

12Michigan v. Tyler, 98 S.Ct. 1942, 436 U.S. 499, £6 L.Ed.2d

486 (1978).

13Hathorn v. Lovorn, 102 S.Ct. 2421, 457 U.S. 255, 72

80 SS eee Teh'g denied, 103 S.Ct. 15, 458 U.S. 1131, 73

L.Ed.2d 1401 , citing Barr v. City of Columbia, 84 S.Ct.

1734, 378 U.S. 146, 149, 12° L.Ed.3d 766 (1964).

1478 S.Ct. 99, 355 U.S. 41, 2 L.Ed.2d 80 (1957).

1SConley v. Gibson, 355 U.S. at 47.

16silver v. Slusher, 770 P.2d 878, 887 (1988), J. Wilson

dissenting, citing OKLA. STAT. tit. 12, § 2008(F).

6

The touchstone of due process is protection of the individual

against arbitrary action of government!’ and the United States

Supreme Court has supervisory jurisdiction over state courts to

evaluate the judgment in relation to the federal Constitution.18

If the state's procedure cannot pass constitutional muster, as

when the interpretation is unconstitutionally arbitrary,19 or is

"inconsistent with fundamental principles of liberty and

justice",20 review of the interpretation is within the authority

of the United States Supreme Court.2! Where the state court

has erred, the proper forum for appeal is the United States

Supreme Court.22

In the present case, the Oklahoma Supreme Court has

~ 7Daniels v. Williams, 106 S.Ct. 662, 474 U.S. 327, 331, 88

L.Ed.2d 662 (1986), quoting Dent v. West Virginia, 9 S.Ct. 231,

129 U.S. 114, 123, 32 L.Ed. 623 (1009).

18Chandler, supra.

19mMuench v. Israel, 14 F.Supp. 1194, aff'd, 715 F.2d 1124,

cert. denied, Worthing v. Israel, 104 S.Ct. 2682 TE.D. Mich. 1981).

20Ewing v. Winans, 749 F.2d 607, 609 (10th Cir. 1984),

citing Silva v. Fox, 351 F.2d 61 (10th Cir. 1965).

2lWilliams v. Wainwright, 650 F.2d 58 (5th Cir. 1981).

22 Aristocrat Health Club of Hartford, Inc. v. Chaucer, 451

F.Supp. Z10 (D. Conn. 1978).

7

followed a procedure which is not only arbitrarily applied but

is also so interwoven with a federally protected right as to

afford an independent ground for United States Supreme Court

review.2° Federal courts will have subject-matter jurisdiction

over the procedural due process claims arising under the

federal constitution.24 This Court maintains power to correct

such judgment to the extent it is in conflict with the due

process clause.2° Since the Oklahoma Supreme Court rendered

an opinion based upon a dismissal for failure to state a claim

for relief, that court should have also taken appropriate action

ms

a

__-———-—to femand the issue and allow the Silvers the opportunity to

amend their pleading as required by Oklahoma law.

By:

CLIFTON D. NAIFEH - OBA #6568

NAIFEH & WOSKA

A Professional Corporation

100 Coleord Building

15 N. Robinson

230hio v. Johnson, 104 S.Ct. 2536, 467 U.S. 493, 81 L.Ed.2d

425, reh’g denied, 195 S.Ct. 20 (1984).

24sarfaty v. Sarfaty, 534 F. Supp. 701 (B.D. Pa. 1982);

Johnston v. shaw, 556 F.Supp. 406 (N.D. Tex. 1982).

a aa Ae ; ei as P nile ee

25Tibbs v. Florida, 102 S.Ct. 2211, 457 U.S. 31, 72 L.Ed.2d

652 (1982).

8

Oklahoma City, Oklahoma 73102

(405) 235-2404

ATTORNEY FOR PETITIONERS

Respectfully submitted this day of September, 1989.

PROOF OF SERVICE

I, Clifton D. Naifeh, Counsel of Record for Randall and

Mikala Silver, Petitioners, and a member of the Bar of the

Supreme Court of the United States, hereby certify that, on

the day of September, 1989, I served a copy of the

foregoing PETITIONERS' BRIEF IN REPLY TO RESPONDENT'S

BRIEF IN OPPOSITION TO PETITION FOR CERTIORART to the

Supreme Court of the United States on Farmers and Merchants

Insurance Company, the Respondent herein, by delivering a

copy thereof to Jim W. Lee, Esq., attorney of record for the

Respondent, at his office located at 2728 N.W. 39th Street, P.

O. Box 1907, Oklahoma City, Oklahoma, 73157-7320.

CLIFTON D. NAIFEH