# Reply Brief — Silver v. Farmers & Merchants Insurance

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1496%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 817

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1496%3A5. Public record. Not legal advice.