Opposition — Waterman v. Wray

Supreme Cove, U.

PIL EES,

JUN 10 1977

MICHAEL RODAK, JR., CLERK

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

76-1749

JOSEPH WATERMAN,

Petitioner,

Vs.

BERNARD CHUPKA, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN L. FRANCIS

City Attorney

JAMES R. KIRK

Senior Assistant City Attorney

90 West Broad Street

Columbus, Ohio 43215

HAROLD E. WONNELL

140 East Town Street

Columbus, Ohio 43215

Attorneys for Respondents

nn ed

COURT INDEX PRESS, INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513) 241-1450

TABLE OF CONTENTS

Page

INDEX TO AUTHORITIES | 1 Oe

GROUNDS FOR DENIAL OF WRIT OF

CERTIORARI | - See tae 2 eae

STATEMENT OF THE CASE | RA fee 2

ARGUMENT | ee RAC ips idee

Ground No. I | Senet a een pipey 5

Ground No. II ._... hy eee ries 7

I vc Oa Ne Oe ea ee ek ee 1]

CONCLUSION enrs | ) a 12

INDEX TO AUTHORITIES

Cases Cited: Page

City of Columbus v. Waterman, 41 Ohio App. 2d

98 : | 10, 11

Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed.

195 (1876) 7 | 10

Hormel v. Helvering, 312 U.S. 552, 85 L.Ed. 1037,

61 S.Ct. 719 = 5

Mastracchio v. Ricci, 498 F.2d 1257 (Ist Cir. 1974) .. 8

Preiser v. Rodriguez, 411 U.S. 475, 36 L.Ed. 2d 439,

93 S.Ct. 1827 (1973) 10

Pyles v. Keane, 418 F.Supp. 269 (D.C., $.D., N.Y.,

1976) bi: ita

Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973) 9

Walters v. St. Louis, 347 U.S. 231, 98 L.Ed. 660,

74 S.Ct. 505 | 5

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

JOSEPH WATERMAN,

Petitioner,

Vs.

BERNARD CHUPKA, et al.,

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GROUNDS FOR DENIAL OF

WRIT OF CERTIORARI

The respondents pray that a writ of certiorari to review

the opinion and judgment of the United States Court

of Appeals for the Sixth Circuit be denied and that the

decision of the United States Court of Appeals for the

Sixth Circuit be affirmed for the following reasons:

I. The issues set forth in the petition for the writ of

certiorari by the petitioner herein were not raised in the

U. S. District Court for the Southern District of Ohio,

Fastern Division, or in the United States Court of Appeals

for the Sixth Circuit and are here urged for the first time.

2

II. The issues so urged were not present in the Frank-

lin County, Ohio, Municipal Court, the Court of Appeals

for the Tenth District of Ohio, the United States District

Court for the Southern District of Ohio, Eastern Division,

or the United States Court of Appeals for the Sixth Cir-

cuit.

III. The petition for a writ of certiorari erroneously in-

terprets the decision of the Tenth District Court of Ap-

peals of the State of Ohio insofar as it concludes that court

decided the issue which was present in the instant civil

rights case and that it finally decided the issue in the local

Court on behalf of the petitioner.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

The within brief is filed in accordance with Rule 24 of

the Supreme Court Rules.

STATEMENT OF THE CASE

On August 22, 1973, after a three day jury trial in the

Franklin County, Ohio, Municipal Court, the petitioner

was found guilty by the jury of a violation of Columbus,

Ohio, Municipal Ordinance, § 2355.02, for unlawfully

obstructing members of the Columbus Police Department

at the scene of an arrest. This conviction is based essen-

tially upon the following facts.

On the night of December 2, 1972, there was a distur-

bance at the El Toro Lounge on South High Street in

Columbus, Ohio, and one Officer Ruda of the Columbus

Police Department caused an officer in trouble signal to be

broadcast. (R. 393-397) Respondent, Officer Denver

Wray, responding to that call was the first to arrive on the

3

scene. (R. 395) He immediately went into the El Toro

Lounge and encountered Officer Ruda in a scuffle with

one he recognized as Roscoe Dean, with whom he had

previous contact. (R. 397) He knew Dean to be a

mental case who was very physical after drinking. (R. 397)

Wray assisted Ruda in arresting Roscoe Dean and escorted

him to the rear of a police vehicle where he was placed

inside. (R. 398) Dean was placed in the extreme left rear

portion of the wagon next to the rear door. (R. 399)

There had gathered a large crowd of onlookers and upon

orders of Sergeant McCormick, the immediate superior of

Wray and several other officers who had arrived, Wray

and others began an effort to clear the scene of the arrest

of Dean and others. (R. 401) Officer Wray saw Officer

Smith endeavoring to move the crowd away from the

scene of the arrest and heard the petitioner, Waterman,

say; “I’m an attorney and a United States citizen, and I

don’t have to move.”” (R. 403) In the ensuing encounter

between Officer Wray and Waterman when the latter was

asked to leave the immediate scene, Waterman told Officer

Wray he would not move and that if he were arrested, it

would be the sorriest day of Officer Wray’s life. (R. 404)

Arrests were still underway and Waterman was standing

at the curb in a position so he could look inside the side

door of the police vehicle which was parked at an angle

to the curb headed in a southwest direction. (R. 158, 223,

227, 236, 403) Whe Waterman came on the scene, no

one except Roscoe Dean had been arrested and placed in

the wagon. (R. 153) While the officer in trouble signal

had been terminated, there was still a disturbance and ar-

rests were being made. (R. 30-31) Waterman was at

the entrance to the side of the police vehicle with a female

companion. (R. 27-28) When asked to move out of the

way and back from the wagon, Waterman refused although

4

his female companion moved out of the immediate area.

(R. 31-32) Waterman was arrested and charged with

violating § 2355.02 of the Columbus City Code.

Following his conviction, the petitioner filed his appeal

with the Court of Appeals for Franklin County, Ohio; that

is the Tenth District of Ohio Court of Appeals. The

decision in that case is reported at 41 Ohio App. 2d 98.

(A printed copy of that opinion is annexed to petitioner's

petition for writ of certiorari. Appendix, page 24.)

Subsequent to the decision of the Franklin County, Ohio,

Court of Appeals, the petitioner brought the instant action

in the U. S. District Court, which was heard by a jury on

September 29, 30, and October | and 2, 1975, resulting

in a verdict in favor of the respondent police officers.

Petitioner then on November 3, 1975, filed a notice of

appeal to the United States Court of Appeals for the Sixth

Circuit in Cincinnati, Ohio. The sole questions presented

by petitioner in that appeal were as follows:

1. Whether the trial court erred in denying plain-

tiff-appellant’s motion for directed verdict on the

ground of considering the evidence in its best

light for defendants-respondents reasonable minds

could not differ from the conclusion that defen-

dants were liable to plaintiff.

2. Whether the trial court erred in denying plain-

tiff’s motion for judgment notwithstanding the

_verdict on the basis that no evidence was intro-

duced at trial that could support the verdict re-

turned.

Following argument on February 4, 1977, the United

States Court of Appeals for the Sixth Circuit by order

filed February 15, 1977, affirmed, the actions of the United

States District Court in submitting the case to the jury and

found that no prejudicial error had occurred at the tria).

ARGUMENT

GROUND No. I

THE ISSUES SET FORTH IN THE PETITION

FOR THE WRIT OF CERTIORARI BY THE

PETITIONER HEREIN WERE NOT RAISED

IN THE U. S. DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO, EASTERN DI-

VISION, OR IN THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT AND

ARE HERE URGED FOR THE FIRST TIME.

It is elementary and well settled that the Supreme Court

does not give consideration to issues not raised in the

courts below. Hormel v. Helvering, 312 U.S. 552 at 556,

85 L.Ed. 1037 at 1041, 61 S.Ct. 719, and Walters v. St.

Louis, 347 U.S. 231 at 233, 98 L.Ed. 660 at 664, 74 S.Ct.

505.

Petitioner urges as the second question presented by

his petition that motions for summary judgment and di-

rected verdicts in civil rights litigation may be effectively

abolished by actions of the trial courts as taken in the

instant case. It should be noted at the outset that at no

time was a motion for summary judgment sought. The

only matter with respect to a directed verdict is so brief

that it is set forth here in its entirety from page 428 of the

record in the U. S. District Court.

MR. CONNOR: If it please the Court, we would

move the Court to direct a verdict on the question of

liability in our favor due to the fact that based upon

the law as the Court has indicated it understands the

law and will instruct the jury as such, it would appear

that the Court can find, as a matter of law, even giving

the Defendants — considering the Defendants’ evi-

6

dence in its best light that there is no question that

Joseph Waterman did not interfere at the scene of

the arrest of Roscoe Dean or the other three people

that were arrested on December 2, 1972.

In the brief of the petitioner filed in the United States

Court of Appeals for the Sixth Circuit, the sole questions

presented are as follows:

1. Whether the trial court erred in denying plain-

tiff-appellant’s motion for directed verdict on the

ground that considering the evidence in its best

light for defendants-respondents reasonable minds

could not differ from the conclusion that defen-

dants were liable to plaintiff.

2. Whether trial court erred in denying plaintiff's

motion for judgment notwithstanding the verdict

on the basis that no evidence was introduced to

trial that could support the verdict returned.

It is clear that at no time in the United States District

Court for the Southern District of Ohio, Eastern Division,

or in the United States Court of Appeals for the Sixth Cir-

cuit, did petitioner raise the issues he now urges in sup-

port of his petition for writ of certiorari.

~I

GROUND No. II

THE ISSUES NOW URGED WERE NOT PRES.

ENT IN THE FRANKLIN COUNTY MUNICI-

PAL COURT, THE COURT OF APPEALS FOR

THE TENTH DISTRICT OF OHIO, THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO, EASTERN

DIVISION, OR THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT.

The petitioner urges explicitly and seeks to cite cases

in support of his contention that since his conviction

growing out of a violation of an ordinance of the City of

Columbus, Ohio, was reversed by the Franklin County,

Ohio, Court of Appeals, the doctrine of collateral estoppel

operates to bar the United States District Court from

submitting the question of good faith probable cause, on

the part of respondents, to the jury impaneled to hear the

facts in his civil rights case. While in certain fact pat-

terns, the doctrine of collateral estoppel may apply, this

proposition is clearly inapplicable in the instant case since

the issues urged were not present in any of the preceding

cases before the civil rights case and the parties and the

facts were different.

The issue in the petitioner's criminal trial before the

Franklin County Municipal Court was whether or not the

petitioner had violated § 2355.02 of the Columbus City

Codes.

The issues presented by the petitioner to the Franklin

County, Ohio, Court of Appeals in no way encompass the

issue of fact which was before the United States District

Court jury. A brief reference to the assignments of error

made by the petitioner to the Franklin County, Ohio,

8

Court of Appeals appearing from the bottom of page 99

through page 100 of that Court’s decision reveals that the

issue in the civil rights case was never presented to the

Court of Appeals in Franklin County, Ohio, and for that

reason to urge the doctrine of collateral estoppel is errone-

ous.

The record at page 429 and page 430 reveals that the

petitioner conceded that an appropriate issue upon which

the U. S. District Court should charge the jury was the

issue of good faith probable cause, on the part of respon-

dents. At that place in the record the U. S. District Court

Trial Judge invited comment concerning objections, addi-

tions, alterations, or omissions to the charge. At that junc-

ture in time, the petitioner did not raise the doctrine of

collateral estoppel or in anyway urge it upon the Court.

At no time was it inferred that the Franklin County, Ohio,

Court of Appeals decision had a res judicata effect upon

the civil rights case then to be decided by a jury in the

U. S. District Court.

The issues presented to the United States Court of Ap-

peals for the Sixth Circuit by the petitioner make it emin-

ently clear that the petitioner did not then think that the

Franklin County, Ohio, Court of Appeals decision worked

in any way as a bar to the determination by a jury sitting

in the U. S. District Court of the factual issue of good

faith probable cause.

While the cases cited by the petitioner are in some re-

spects supportive of the doctrine of collateral estoppel,

they are not in point in the instant case. Mastracchio v.

Ricci, 498 F.2d 1257 (1st Cir. 1974), is a case resulting in

a summary judgment against the plaintiff wherein while

a state criminal proceeding was not yet terminated, the

plaintiff brought a civil rights action based upon alleged

9

perjured testimony of a police detective. At page 1259 of

that decision the following language appears:

. when Civil Rights action is brought in Federal

Court which presents same issue which was decided

in a prior state civil action that prior state judgment

may have a collateral estoppel (or res judicata) effect

upon the Federal suit.

(Emphasis writers.)

At page 1260 there is the following language:

. . . Collateral estoppel operates, of course, only as to

matters actually litigated and decided at the prior

trial... .

(Emphasis writers.)

In substance, Mastracchio holds that prior state action

may have a collateral estoppel effect but only as to matters

actually litigated and decided at the prior trial. Such is

not the case here and thus Mastracchio becomes more

authoritative for the respondents than for the petitioner.

The same is true of the decision in Rosenberg v. Martin,

478 F.2d 520 (2d Cir. 1973), a case involving a judgment

against a former police inspector in favor of a prisoner

which was reversed on appeal with instructions to dismiss

the complaint. It should be noted, that the identical issue,

it was held, had been twice litigated against the plaintiff.

The issue there was deprivation of a right to a fair trial

because of publicity releases by a former police inspector.

Rosenberg is distinguishable because it was held that the

identical issue had been twice litigated: In the instant

case the identical issue was never litigated until originally

in the civil rights action in the United States District

Court.

The case of Pyles v. Keane, 418 F.Supp. 269, (D.C. S.D.,

N.Y., 1976) stands only for the proposition that the doc-

10

trine of collateral estoppel can be raised and considered

upon a pre-trial motion to dismiss. Therein a motion

to dismiss a prisoner's action against police officers for

declaratory judgment and money damages for alleged vio-

lations of civil rights was sustained. The suit was based

upon denial of assistance of counsel, search and seizure, as

well as malicious prosecution. The case is simply not in

point.

In Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed.

195 (1876), it was held that the issue was not the same

and estoppel did not lie in an action against an Iowa

county upon interest coupons issued for the erection of a

courthouse. That is no authority for the propositions

which are urged by petitioner herein. For further authori-

ty that the issues must be the same, see Preiser v. Rodri-

guez, 411 U.S. 475, 36 L.Ed. 2d 439, 93 S.Ct. 1827 (1973),

where the question presented to the Court was whether the

action was in habeas corpus requiring exhaustion of state’s

remedies or Civil Rights and petitioning prisoners sought

to persuade the Court to follow cases regarding prison con-

ditions rather than early or speedier release. The Court

refused to embrace a collateral estoppel since the issues

were not the same.

Even if the doctrine of collateral estoppel had been

raised before the U. S. District Court, such an objection

would have been properly overruled. It is respectfully

submitted that since the issues now urged were not pres-

ent, the trial court properly charged the jury and in so doing

followed the law of the State of Ohio as enunciated in

the very case which petitioner urged upon the Court; to

wit, City of Columbus v. Waterman, 41 Ohio App. 2d 98.

il

GROUND No. Ill

Petitioner at page 18 of the Petition for Certiorari filed

herein alleges that the factual evidence in the instant case

was identical to the state criminal case. Respondent re-

spectfully submits that this is not true. This may be a

minor point of contention; however, in any event, the

Court is in no position to determine whether the allega-

tion made on page 18 is true or false inasmuch as the rec-

ord of the state criminal proceeding is not before this

Court.

Further, at page 18, petitioner states that under state

law the case was reversed and final judgment entered for

the petitioner. At no place in the opinion of the Franklin

County, Ohio, Court of Appeals in Columbus v. Water-

man, 41 Ohio App. 2d 98, is there any language entering

final judgment for the petitioner. As a matter of fact, at

page 105 of that opinion, the Court sustained the fifth

assignment of error of the petitioner on the ground that

his motion for a new trial should have been sustained.

The granting of a new trial in no way is a final judgment

for the petitioner. In the concurring opinion of J. Straus-

baugh in sustaining assignments of error raised by the

petitioner, at page 106, that eminent jurist indicates ". . .

I would reverse and remand this matter for re-trial. . . .”

Certainly no one can successfully contend that language

supports the conclusion that a final judgment was rendered

on behalf of the petitioner.

12

CONCLUSION

The petition for a writ of certiorari should be denied

for the reasons that the issues now raised by petitioner

were not timely raised, either in the U. S. District Court

or in the U. S. Court of Appeals for the Sixth Circuit and

properly so because the issues now urged were not present

in the Franklin County, Ohio, Municipal Court, the Court

of Appeals for the Tenth District of Ohio, the United

States District Court for ‘e Southern District of Ohio,

Eastern Division, or th * aited States Court of Appeals

for the Sixth Circuit.

Respectfully submitted,

JOHN L. FRANCIS

City Attorney

JAMES R. KIRK

Senior Assistant City Attorney

90 West Broad Street

Columbus, Ohio 43215

HAROLD E. WONNELL

140 East Town Street

Columbus, Ohio 43215

Attorneys for Respondents