Opposition — Key v. Keady

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-452

ALF KEY, ET AL.,

Petitioners,

vs.

WILLIAM C, KEADY, UNITED STATES DISTRICT

JUDGE FOR THE NORTHERN DISTRICT

OF MISSISSIPPI, ET AL...

Respondents.

BRIEF FOR THE RESPONDENTS AND OBJECTION

TO JURISDICTION AND IN OPPOSITION TO PETI-

TION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

VARDAMAN S. DuNN

Post Office Box 1046

Jackson, Mississippi 39205

Attorney of Record for Respondents

E. L. Mewoewwart, Iwc., 926 Cherry Street, Kansas City, Mo. 64106, 421-8990

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TABLE OF CONTENTS

PRELIMINARY STATEMENT 2

REASONS FOR DENYING THE WRIT 4

A. There Is No Jurisdiction Because the Petition

Was Not Timely Filed 4

B. The Writ of Mandamus Was Properly Denied... _ 6

CONCLUSION 9

Table of Authorities

CASES

Amalgamated Clothing Workers of America v. Rich-

man Brothers, 348 U.S. 452, 75 S.Ct. 452 (1955)... 8

Atlantic Coast Line R. Co. v. Brotherhood of Locomotive

Engineers, 398 US. 281, 90 S.Ct. 1739 (1970)... 8

Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 74

S.Ct. 145 (1953) 8,9

Credit Company v. Arkansas Central Railway Co., 128

US. 258, 9 S.Ct. 107 (1888) 4

Ex Parte Fahey, 332 U.S. 258, 67 S.Ct. 1558

Farrar v. Churchill, 135 U.S. 609, 10 S.Ct. 771 (1890) 4

Federal Trade Commission v. Minneapolis-Honeywell

~J

Regulator Co., 344 US. 206, 73 S.Ct. 245 (1952) .... _ 5

Lejeune v. Midwestern Ins. Co., 197 F. 2d 149 (CA 5,

1952) 5

Matton Steamboat Co. v. Murphy, 319 U.S. 412, 63 S.Ct.

1126 (1943) 5

Poynor v. Commissioner of Internal Revenue, 81 F.2d

521 (CA 5, 1936) 5

Rust Land & Lumber Co. v. Jackson, 250 US. 71, 39

S.Ct. 424 (1919)

Schlagenhauf v. Holder, 379 US. 104, 85 S.Ct. 234 __

T. Smith & Son v. Williams, 275 F.2d 397 (CA 5, 1960)

Toledo Scale Co. v. Computing Scale Co., 261 US. 399,

43 S.Ct. 458 (1923)

United States v. Angeline Lombardo, 241 US. 73, 36

S.Ct. 508 (1915)

SIATUTES

Rule 22, United States Supreme Court

Rule 34, United States Supreme Court

28 U.S.C. §2101

Text

1A Moore’s Federal Practice, §0.208[4]

7

8

4,5

In the Supreme Court of the United States

OCTOBER TERM, 1976

ALF KEY, ROSCOE KEY, JR., PETER ANDREW KEY,

JOE ALFONZIA KEY, PAUL KEY, TOM KEY, JR.,

LOUIS KEY MASON, GEORGIA KEY BOLDEN, WALDO

H. HERMAN AND GILBERT JOHNSON,

Petitioners,

vs

FISCHER, EUGENIA FISCHER, MAX J. HEINBERG, III,

2

Respondents will demonstrate that the Petition for a

Writ of Certiorari was not timely filed and that there is

no jurisdiction to consider the Petition.

The Petition seeks review of an Order of the Fifth

Circuit filed May 24, 1976, denying a Petition for a Writ

of Mandamus (Apx. 56). A Petition for Rehearing was

denied by an Order filed June 28, 1976 (Apx. 57).

The present Petition was filed with the Clerk of this

Court on September 28, 1976 (see notice on official form

appended to this brief).

Excluding the day that the last Order was filed (June

28, 1976), the 9Cch day fell on September 26, 1976, which

was Sunday. The following day, September 27, 1976, then

became the final filing day, but the Petition was not filed

until September 28, 1976, one day late or 92 calendar days

after entry of the Order involved.

PRELIMINARY STATEMENT

The Petition seeks review of a decision of the Fifth

Circuit Court of Appeals denying an application to that

Court for a Writ of Mandamus to District Judge William

C. Keady.

The mandamus relief prayed for would have directed

the District Court to act in a certain way on certain mo-

tions and to vacate orders declining to act in the manner

desired by petitioners, and would have directed also the

issuance of a federal stay order against the trial of certain

land title issues in the state court.

The refusal of the District Judge to stay proceedings

in the state court was the subject of an order entered

——EEE

February 27, 1973 (Apx. 38), from which an appeal was

taken to the Fifth Circuit, which appeal was dismissed on

June 12, 1973. At the same time, the Court of Appeals

denied appellants’ motion to stay the state court proceed-

ings (Apx. 39). No effort was then made to have this

decision reviewed by the Supreme Court of the United

States.

Failing the first time, petitioners waited until May 21,

1976, and then filed in the Court of Appeals a “Petition

for a Writ of Mandamus” (Apx. 47), which, in essence,

sought the same relief that the Court of Appeals was asked,

but refused, to grant on the appeal in 1973, including a

stay of state court proceedings.

The state court proceedings in question had com-

menced in the Chancery Court of Humphreys County on

June 19, 1973, and had been concluded there four days

later, resulting in a decree against the defendants (peti-

tioners here), from which an appeal was taken. This ap-

peal is now pending before the Supreme Court of Missis-

sippi.’

The Fifth Circuit denied the Petition for the Writ of

Mandamus by Order filed May 24, 1976 (Apx. 56). A Peti-

tion for Rehearing was denied by Order filed June 28,

1976. The present Petition was filed September 28, 1976,

or 92 days later.

Latte sees Cast be pete Se Orem os

sion to Court on November 9, 1976.

A.

There Is No Jurisdiction Because the Petition

Was Not Timely Filed

Rule 22 states in part:

“3. A petition for writ of certiorari in all other

cases shall be deemed in time when it is filed with the

clerk within the time prescribed by law.”

This case falls within the “all other cases” category

where the time is prescribed by law.

28 U.S.C. §2101 provides in pertinent part as follows:

“(c) Any other appeal or any writ of certiorari

intended to bring any judgment or decree in a civil

action, suit or proceeding before the Supreme Court

for review shall be taken or applied for within ninety

days after the entry of such judgment or decree. .. .”

An appeal is taken or a writ is applied for when the

required notice or petition is filed with the Court or Clerk.

Credit Company v. Arkansas Central Railway Co., 128 US.

258, 9 S.Ct. 107 (1888); Farrar v. Churchill, 135 U.S. 609,

10 S.Ct. 771 (1890).

In United States v. Angeline Lombardo, 241 U.S. 73,

36 S.Ct. 508 (1915), the Court said:

“. . . Filing, it must be observed, is not complete

until the document is delivered and received. ‘Shall

file’ means to deliver to the office, and not send

through the United States mails. Gates v. State, 128

N.Y. 221, 28 N.E. 373. A paper is filed when it is de-

oo -

livered to the proper official and by him received and

filed... .” ,

Since the time for filing a petition for the writ is

Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245 (1952);

Matton Steamboat Co. v. Murphy, 319 US. 412, 63 S.Ct.

1126 (1943); Rust Land & Lumber Co. v. Jackson, 250 US.

71, 39 S.Ct. 424 (1919); Toledo Scale Co. v. Computing

Scale Co., 261 U.S. 399, 43 S.Ct. 458 (1923).

It may be that the Petition was “mailed” on the last

day allowed for filing, but it was not received and filed

until the day following. Depositing a document in the

United States mail, however, is not a filing with the Clerk

It was so held in United States v.

Angeline Lombardo, 241 US. 73, 36 S.Ct. 508 (1915),

Ins. Co., 197 F.2d 149 (CA 5, 1952).

The time count is governed by Rule 34, which provides

in pertinent part:

“1. In computing any period of time prescribed

or allowed by these rules, by order of court, or by

any applicable statute, the day of the act, event, or

default after which the designated period of time be-

gins to run is not to be included. The last day of the

period so computed is to be included, unless it is a

Sunday or a legal holiday, in which event the period

runs until the end of the next day which is neither a

Sunday nor a holiday. A half holiday shall be con-

sidered as other days and not as a holiday.”

So, computing the time, the filing of the Petition was

not accomplished until the 92nd day, excluding the date

of entry of the Order (June 28, 1976), and excluding Sun-

day, September 26, 1976. This was one day too late.

We, therefore, submit that the untimely Petition

should be dismissed on jurisdictional grounds.

B.

The Writ of Mandamus Was Properly Denied

Petitioners have asserted that the District Court in

and should not stay its hand pending resolution of issues

of local land law in an ongoing and practically finished

state court 'itigation involving only private litigants but,

instead, should enjoin the litigation in the state forum.

A motion seeking to persuade the District Court to

this position was made (Apx. 35-38) and overruled by

Order filed February 27, 1973. Petitioners appealed and

presented to the Court of Appeals a motion to stay the

state court proceedings. The appeal was dismissed on

motion of appellees and the motion for stay was denied

by order of the Court of Appeals on June 12, 1973 (Apx.

39). No effort was made to obtain a review of that decision

here.

Since then, the state proceedings continued through

a trial in the Chancery Court of Humphreys County, the

entry of a Decree and the perfection of and processing

of an appeal to the Supreme Court of Mississippi, which

remains pending but is soon to be resolved.

Becoming impatient, petitioners on May 21, 1976, al-

most three years after their unsuccessful appeal to the

7

Fifth Circuit, filed a “Petition for a Writ of Mandamus”

raising again the same questions.

The only question of substance raised by the man-

damus petition filed in the Fifth Circuit involves the con-

tention that the federal court has exclusive jurisdiction

and that the state court proceedings are therefore without

meaning or effect.

This position is vigorously disputed and is the subject

of debate in the state Supreme Court and doubtless will

be the subject of debate in the United States District

Court which has retained jurisdiction in the case filed

there by petitioners.

We do not address the merits of the jurisdictional

question here, because the resolution to be made of the

issue by either the Supreme Court of Mississippi or the

United States District Court or both will be subject to

appeal and review processes by any aggrieved party.

Therefore, the drastic writ of mandamus is inappro-

priate in the circumstances of this case and the discretion

to deny the writ was properly exercised by the Court

of Appeals by its Orders of May 24 and June 28, 1976

(Apx. 56-57).

Authority for respondents’ position is found in Ex

Parte Fahey, 332 U.S. 258, 67 S.Ct. 1558. At best, the

petitioners seek mandamus as a substitute for appeal,

claiming inconvenience and extra expense, but the rule

does not recognize this as a valid reason for issuance of

the extraordinary writ. As held in Schlagenhauf v. Holder,

379 U.S. 104, 85 S.Ct. 234:

“It is, of course, well settled, that the writ is

not to be used as a substitute for appeal, Ex parte

Fahey, 332 U.S. 258, 259-260, 67 S.Ct. 1558, 1559, 91

L.Ed. 2041, even though hardship may result from

delay and perhaps unnecessary trial, Bankers Life &

Casualty Co. v. Holland, 346 U.S. 379, 382-383, 74 S.Ct.

145, 147-148, 98 L.Ed. 106; United States Alkali Export

Ass’n v. United States, 325 U.S. 196, 202-203, 65 S.Ct.

1120, 1124, 89 L.Ed. 1554; Roche v. Evaporated Milk

Ass’n, supra, 319 U.S. at 31, 63 S.Ct., at 944... .”

Accord: Bankers Life & Casualty Co. v. Holland,

346 U.S. 379, 74 S.Ct. 145 (1953).

As to petitioners’ effort to have the federal court en-

join proceedings in the state court, this will not do,—

even if it were conceded, for the sake of the argument,

that the exclusive jurisdiction of the controversy has been

given to the federal District Court, and that the state

court has no jurisdiction at all. The Court is firmly com-

mitted to the view that the Act of Congress known as

the anti-injunction statute (28 U.S.C. §2283) admits of

no such exception to its sweeping prohibition against en-

joining proceedings in state courts. It was so held in

Atlantic Coast Line R. Co. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281, 90 S.Ct. 1739 (1970), and in Amal-

gamated Clothing Workers of America v. Richman Broth-

ers, 348 U.S. 452, 75 S.Ct. 452 (1955). See also T. Smith

& Son v. Williams, 275 F.2d 397 (CA 5, 1960); 1A Moore’s

Federal Practice, §0.208([4].

There is no act of Congress authorizing an injunction

to stay state court proceedings. There is no federal judg-

ment to protect or effectuate. The District Court has

retained its own jurisdiction and that jurisdiction is unchal-

lenged as far as it goes and needs no aid.

CONCLUSION

The Petition should be dismissed for want of jurisdic-

tion to entertain the untimely Petition. If mistaken, the

Petition should be denied for the other reasons assigned.

The Court of Appeals exercised its discretion in deny-

ing the writ. In seeking reversal, petitioners have the

‘burden of showing that a right to the writ existed that

is “‘clear and indisputable’”, Bankers Life & Casualty

Co. v. Holland, supra. That burden has not been met.

Respectfully submitted,

VARDAMAN S. DuNN

Post Office Box 1046

Jackson, Mississippi 39205

Attorney of Record for Respondents

11

«

SUPREME COURT OF THE UNITED STATES

Ocrosex Term, 1975

.ALE_KEY, @t a1_ —

Appellant —Petitioner

No. 76-452

WILLIAM C. KEADY “United States

District Judge for the Northern

District of Mississippi, et al.

Appellee -Respondent

To Hon. Vardaman S. Dunn _._S-_____. (‘ownsel for Appellee -Respondent :

You Are Heresy Noririep that an appeal--a petition for a writ of certiorari—in the above-

entitled and numbered case was docketed in the Supreme Court of the United States on the

28th day of September 1976.

At the request of the Clerk of the Supreme Court, we are sending atteched hereto an ap-

pearance form to be filed by you. or other counsel who will represent your party, with the Clerk

at or before the time you file your response to our petition or jurisdictional statement.

Counsel for Appellant—Pebitioner ee

_ 308 Dermon Building

Number and Street

_Memphis, Tennessee 38103

City, State and Zip Code

NOTE: Please indicate whether the case is an appeal or a petition for certiorari by crossing out

the inapplicable terms. A copy of this notice need not be filed in the Supreme Court.