Opposition — Security Savings & Loan Ass'n v. City Savings Ass'n

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Supreme Court, J. '

FILED

' JUN 18 1978

MICHAEL RODAK, JR. CLERE

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-1634

SECURITY SAVINGS AND LOAN ASOCIATION

OF DICKINSON, TEXAS,

Petitioner

Vv.

CITY SAVINGS ASSOCIATION,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Other Counsel for Respondent:

ROBERT J. HEARON, JR. Dow H. HEARD

P. O. Box 98 1300 First City National

Austin, Texas 78767 Bank Building —

1001 Main Street

LOWELL B. Hays

1300 First City National Houston, Texas 77002

Bank Building Counsel for Respondent

Houston, Texas 77002

Alpha Law Briej Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

Opinions Delivered in Courts Below ..................

I « dh ndinn beebdud edaceans 6 esediuadnn dente noe

Constitutional Provisions, Statutes and Rules ..........

Questions Presented for Review .................0005-

ee i dois casual ous

See TE Wika FeO Oded e dai ne bicccs cdievié ccdevda.

The State Court Decision Rests on Local Grounds ....

The State Court Has Not Decided a Federal Question

Petitioner Neither Timely Nor Properly Raised the

So-Called Federal Question ........cccccccccccces

Decision of State Court Rests on Other Adequate

Independent State Grounds ......................

INDEX OF AUTHORITIES

CASES

Aetna Casualty & Surety Company v. Depoister, 393

S.W.2d 822 (Tex. Civ. App. 1965; ref’d. mre.) ......

Altum v. Booth, 399 S.W.2d 836 (Tex. Civ. App. 1966;

SE. Dekhatnesabadeesannhnastedwoensduncecceces

American Motorists Insurance Company v. Landes, 252

ee FE Ce GE MUU oboe e6bbeuvinsscdccceedés.

Arkansas Southern Railroad Company v. German National

Bank, 207 U.S. 270, 52 L.Ed. 201 (1907) ............

Bacon v. State of Texas, 163 U.S. 207, 41 L.Ed. 132

SUEDE. WEttdeeeceendhheksetiabedeentenenes eee.

Blakney v. Panhandle & Santa Fe Railway Company, 381

S.W.2d 143 (Tex. Civ. App. 1964; ref’d. mre.) .......

Broad River Power Company v. State of South Carolina,

281 US. 537, 74 L.Ed. 1023 (1929) ............000;

Brooks v. Texas General Indemnity Company, 251 F.2d

ae Pe En SEE Sha coccadaddcddedsecves seedeeee.

CASES

Brown v. Dale, 395 S.W.2d 677 (Tex. Civ. App. 1965;

pee SD hatcenade tube dbéuhatnvaswidedcacecés «

Brunswick Corporation v. Suburban Bowling, Inc., 398

S.W.2d 294 (‘Lex. Civ. App. 1967; no writ) ..........

Citizens of Texas Savings & Loan Association vy. Lewis,

Savings and Loan Commissioner, 483 S.W.2d 359 (Tex.

Ss Sf ¢ . 2 | ee eeate reer

Congress o1 Industrial Organizations v. Robert E. McAdory,

$45 U.S. 4/2, 89 L.Ed. 1741 (1944) ................

Cox v. State oi ‘lexas, 702 U.S. 446, 50 L.Ed. 1099 (1905)

Drake v. Walls, 348 S.W.2d 62 (Tex. Civ. App. 1961;

SE EY Satien ba dtis dndie keeled nsdbusdeedecas

Fay v. Nowa, 372 U.S. 391, 9 L.Ed.2d 837 See dates

Federal Power Commission vy. Colorado Interstate Gas

SeeVeeeseeeseseececesoeoeeseeseoeoeeeeoeoeeseeees

Henry v. Mississippi, 379 U.S. 443, 13 L.Ed.2d 408 (1965)

Kirby Lumber Cumpany v. Southern Lumber Company,

192 S.W.2d 460, aff’d., 145 Tex. 151, 196 S.W.2d 387

(1946)

=e PUOCOSCOSSASSHTSCC CEOS CSD OND OOTOUOROS ce Oese

Lewis, Savings aud Loan Commissioner vy. Metropolitan

Savings and Loan Association, _. rex. __, 550 S.W.2d

om gg | REN Sigs

Lynch Oil Company v. Shepard, 242 S.W.2d 217 (Tex.

> MO WOUES GE GIUUED on ccccacccdcecctecc.....

Masterson v. Pennsylvania Railroad Company, 182 F.2d

793 (3rd Cir. 1950)

"SS eeeeeseseoeescoeoeaeseeeeeeeesesc

Page

6, i0

12, 13

10, 20

III

CASES

Miller v. Esunas, 401 S.W.2d 150 (Tex. Civ. App. 1966:

CED Sls bis ute Chaitin cbt eke Gk x dees de

Miller v. Railroad Commission of Texas, __ Tex.

ef 8G 0 RO ae pee Pr ee

Miller v. State of Texas, 153 U.S. 535, 38 L.Ed. 812 (1893)

Minneapolis, St. Paul, & Sault Ste. Marie Railway Com-

pany v. Washburn Lignite Coal Company, 254 U.S. 370,

it ih Mi CN dndwescncanséddadéaccencenecee

eee eeeeeeeeeeeeeneeee

SSUEUTICTOCCSSOSseeseseSeeeseseonscseeaeeeeseeeaaesann

"eeser eee eeeeseeneeeeeeoeoeeee eee eeeé

",TFTeeeeeooeeoeoeeeneeeeeeeeeeeesd

"OP eeeecee ee eoaeeSCeeoeeseeseseeeeaenec

lial Nel, ppt eee ee ee ee oe eae | © © of 2 fe ee

"Seeee eee Ceseseeseeeseeeeeeeeebee

Page

CASES Page

Waters-Pierce Oil Company v. State of Texas, 212 US.

BSG, BD Bum GE CUD 000b000she40cuuneeeee 15

Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959) ... 13

Yzaguirre v. State of Texas, 427 S.W.2d 687 (Tex. Civ.

Rep COGRs Wd GUD. <0 dks cckducidictds.deeteeen 19

FEDERAL STATUTES

$8 WBE. C008 onkcecdcceosesuieesinteeeee 3, 23, 33

STATE STATUTES

Article 852a (Texas Savings and Loan Act),

Revised Civil Statutes of the State of Texas

[Vernon’s Texas Civil Statutes]:

RE. ri 3, 7,27

Oe, TE ‘noo cndunuaaheconadeee 3, 28

ee leh OR . - 3, 29

elie 3, 29

SS Oh - 3, 29

OR, BID xc cccccencodsaseuasseute 3, 30

ees 3, 30

i Se 3s ance lank ucuneaieeeee 3, 5, 20, 22, 30

WO SEO uccvuscadicncsas eee 3,7,17,31

Oe. BERD vcs cacncencencescouseaeee 3, 4, 6,32

FEDERAL RULES OF CIVIL PROCEDURE

See GS ncucccnccntsededewkecesseueueee 3, 23, 33

Se GED sliviccduccdeecscecceddesee sie ee 3, 23,33

Supreme Court of the Hnited States

OCTOBER TERM, 1977

NO. 77-1634

SECURITY SAVINGS AND LOAN ASOCIATION

OF DICKINSON, TEXAS.

Petitioner

Vv.

CITY SAVINGS ASSOCIATION,

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

This cause should not be reviewed by this Court and

the “Petition For Writ Of Certiorari To The Supreme

Court Of The State of Texas” should be dismissed or de-

nied because of each and all of the matters and grounds

disclosed herein.

OPINIONS DELIVERED IN COURTS BELOW

The Supreme Court of Texas did not find or conclude

that the Hearing Officer merely officially noticed the fil-

ing of Respondent's application for a savings and loan

charter. The Supreme Court of Texas, as the District

Court had done, interpreted the opening statement made

by the Hearing Officer and concluded that the Savings

and Loan Commissioner officially noticed Respondent's

application when the Hearing Officer officially found that

the application contained all of the prerequisites under the

Texas Savings and Loan Act. Having reached that con-

clusion, the Court declared that, thus, the facts and data

furnished with the application were officially noticed by

the Commissioner and were before him and became a

part of the record before the Savings and Loan Com-

missioner.

The opinion of the Supreme Court of Texas is re-

ported at 560 S.W. 2d 930.

JURISDICTION

This Court is without jurisdiction of this cause for the

reason that no federal question is before this Court in

this cause and none exists, the questions presented being

purely state or local questions.

This Court is without jurisdiction of this cause for

the reason that no federal question was presented by

Petitioner to the Supreme Court of Texas for decision

and no federal question was actually decided by the

Supreme Court of Texas.

This Court is without jurisdiction of this cause for the

reason that the only possible federal quesiion presented,

to-wit, Petitioner’s claim of denial of due process of law

by the Savings and Loan Commissioner of Texas. was

neither timely nor properly raised, below, and has been

raised or presented for the first time in this Court.

This Court is without jurisdiction of this cause for the

reason that the decision of the Supreme Court of Texas

rests on still other independent and adequate state (non-

federal) grounds.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES

Texas Savings and Loan Act, Article 852a, Revised

Civil Statutes of the State of Texas [Vernon’s Texas

Civil Statutes]:

Sec. 2.01. [Appendix p. 27]

Sec. 2.02. [Appendix p. 28]

Sec. 2.03. [Appendix p. 29]

Sec. 2.04. [Appendix p. 29]

Sec. 2.05. [Appendix p. 29]

Sec. 2.06. [Appendix p. 30]

Sec. 2.07. [Appendix p. 30]

Sec. 2.08. [Appendix p. 30]

* * * *

Sec. 11.11. [Appendix p. 31]

Sec. 11.12. [Appendix p. 32]

Texas Rules of Civil Procedure, Rule 503. [Appen-

dix p. 33]

28 U.S.C. § 2111. [Appendix p. 33]

Federal Rules of Civil Procedure, Rule 61. [Appen-

dix p. 33]

QUESTIONS PRESENTED FOR REVIEW

Petitioner’s claim that it was denied due process of law,

upon judicial review in the District Court, by the admis-

sion in evidence of Respondent’s application for a sav-

ings and loan charter, is a mere fiction.

There were neither pleadings nor proof by Petitioner,

upon judicial review, that a motion for rehearing, based

upon denial of due process by the Commissioner as a re-

sult of his consideration of Respondent's application, had

been filed by Petitioner after the order complained of had

been entered by the Commissioner and that such mo-

tion had been overruled by the Commissioner. And. of

course, no motion for rehearing was filed by Petitioner.

There were neither pleadings nor proof by Petitioner,

upon judicial review, that the Commissioner did not

promptly notify Petitioner of the entry of the order. And,

of course, the Commissioner did promptly notify coun-

sel for Petitioner of the entry of the order.

Petitioner’s pleadings, upon judicial review, contained

no allegation that the order of the Savings and Loan

Commissioner was invalid for the reason that the Com-

missioner’s reliance on data furnished with Respondent’s

application deprived Petitioner of due process of law.

Petitioner merely alleged that such data was not officially

noticed in the record of the hearing and was not « ffered

in evidence and, hence, that the order was invalid because

there was no record support for the Commissioner’s find-

ings of ultimate facts (Tr. 75).

Consequently, the oaly matter which the District Court

had before it, when Respondent's applicaiiun was offered

in evidence upon judicial review, was the matter of inter-

preting the statement which had been made by the Hear-

ing Officer. And, the District Court's interpretation of

that statement was the same as that of’ the Supreme

Court of Texas. That determination having been made

by the District Court, such evidence was obviously ad-

missible. Article 852a, Sec. 11.12(5) (b), Revised Civil

Statutes of the State of Texas. Stated otherwise, under

those circuinstances, when Petitioner’s objection to the ad-

missibility of the application, upon the grounds that it

had not been officially noticed in the record of the hear-

ing, was overruled by the District Court, Petitioner’s other

objections to the admissibility of the application became in-

appropriate and moot. Indeed, it would have been either

fundamental error or reversible error if the District Court

had, then, considered and sustained one of Petitioner’s

other objections.

The remaining questions presented by Petitioner are

actually the presentation of only one question, to-wit,

did the Savings and Loan Commissioner’s consideration

of Respondent’s application and reliance on parts of that

application deprive Petitioner of due process of law.

The discussion of this question, above, under the head-

ing “Jurisdiction” will not be repeated, here.

There is nothing inherently unconstitutional about the

“official notice” doctrine in administrative law. Such

arises Only from abuse of the doctrine, as in the cases

cited and discussed by Petitioner. As will be demonstrated

herein, below, the aluse of that doctrine which was

present in United Stites v. Abilene & S.R. Co., 265

U.S. 274, 68 L.Ed. 1016 (1924), and in Ohio Bell Tele-

phone Company v. Public Utilities Commission, 301 U.S.

292, 81 L.Ed. 1093 (1937), is non-existent, here. Pe-

titioner had adequate and sufficient notice of the specific

data with which it would be conironted at the administra-

tive hearing. Section 2.08 of the Texas Savings and

Loan Act. Petitioner had adequate and sufficient notice

that such data would be admissible upon judicial review

if officially noticed in the record of the hearing. Section

11.17(5)(b) of the Texas Savings and Loan Act. Pe-

titioner even had notice of the type of statement by

the Hearing Officer which would constitute such official

notice of that data. Citizens of Texas Savings & Loan

Association v. Lewis, Savings and Loan Commissioner,

483 S.W.2d 359 (Tex. Civ. App. 1972; ref’d. n.r.e.).

Also, in those cases cited by Petitioner the objectionable

evidence was heavily relied upon by the administrative

agencies.

Contrary to Petitioner’s representations to this Court,

Respondent’s application for charter and the contents

thereof were subjected to cross-examination by counsel

for Petitioner at the administrative hearing, and Re-

spondent’s application for charter was duly verified or

sworn to by each and all of Respondent's incorporators.

There was no “failure to follow administrative rules”,

here, nor “the institution of a new procedure which had

the effect of changing the burden of proof.” That these

generalizations are without any merit has been shown

herein under other headings.

STATEMENT OF THE CASE

Petitioner has at least suggested that, when the original

order was made by the Savings and Loan Commissioner

of Texas granting Respondent’s application for a savings

and loan charter, the Commissioner did not consider the

data furnished with Respondent’s application. One only

has to examine the Texas Court of Civil Appeals

opinion pertaining to judicial review of that original

order, quoted in a footnote on page 7 of the Petition

for Writ of Certiorari, to conclude that such data fur-

nished with the application was considered and relied

LSE

upon, at that time, by the Savings and Loan Commis-

sioner.

Petitioner states that, after the matter was remanded

to the Savings and Loan Commissioner pursuant to the

aforementioned decision of the Court of Civil Appeals,

the Savings and Loan Commissioner entered the amended

order without notice, hearing or reopening the record,

and that such amended order was based upon the

application for charter and data submitted with the

application, instruments which were not verified, never

offered in evidence, and not subjected to cross-examina-

tion.

Petitioner fails to mention that the matter was re-

manded to the Commissioner for the limited purpose of

revising the order as to its form, with no direction or

authorization to reopen the hearing.

Petitioner fails to mention, also, that it did not file a

motion for rehearing before the Commissioner, when

the amended order was entered, alleging as grounds there-

for that Petitioner had been deprived of due process of

law by the Commissioner as a result of his consideration

of and reliance on part of Respondent’s application. Such

motion for rehearing could have been filed by Petitioner

under Section 11.11(5) of the Texas Savings and Loan

Act.

Petitioner’s statement that Respondent’s application

for charter and the data furnished with the application

were not verified is not correct. Respondent’s application

for charter was verified, as required by Section 2.01 of

the Texas Savings and Loan Act, as evidenced by Inter-

venor’s Exhibits Nos. 1, 2 and 3 (certified copies of the

instruments) and by the finding thereon made by the

Savings and Loan Commissioner in the “Amended Order”

[Exhibit A, page 25 of Petition for Writ of Certiorari].

A true copy of Respondent’s application for charter is a

part of the Transcript (Tr. 43).

Petitioner has represented to this Court that the

parties to the administrative hearing, including Petitioner,

did not consider the data furnished with Respondent's

application for charter as being part of the evidence,

upon the administrative hearing, and would have this

Court believe that Petitioner had no opportunity, at the

administrative hearing, to test the accuracy or truth of

such data by cross-examination of Respondent’s witnesses.

The fact is that Petitioner and other protestants not

only had the opportunity to do so, upon the admini-

strative hearing, but actually availed themselves of that

opportunity.

All of the parties to the administrative hearing recog-

nized that this data furnished with Respondent’s appli-

cation was as much a part of the evidence as was the

testimony and exhibits adduced upon the hearing. That

this is so is evidenced by the undisputed fact that the

474-page transcript of the proceedings before the Savings

and Loan Commissioner entitled “Hearing on Applica-

tion” contains numerous references to the application

and data furnished with it in the cross-examination of

Respondent’s witnesses by Petitioner and other protes-

tants. For example, at pages 24-30 of that hearing record,

Respondent's witness, Lammers, was cross-examined by

counsel for Petitioner about some of the data furnished

with the 2pplication in an attempt to discredit that data

and to use some of it to Petitioner's advantage in arguing,

later, that this would not be a locally owned savings

and loan association because the stockholder list which

was part of the data furnished with the application

showed that many of the stock subscribers reside outside

of the community to be served by the proposed savings

and loan association. That particular cross-examination

of Respondent’s witness, Lammers, begins on page 24

(“Hearing on Application”) with the following question

by counsel for Petitioner:

“Q. This list that is attached—I have the official file,

Mr. Lammers, from the Savings and Loan De-

partment, and the list that is attached here on

an application for charter, October 24, received

here October 24, 1972. Do you recognize this

as the stockholder list that you are referring to?”

And, in that same series of questions by counsel for

Petitioner, the following question was asked by counsel

for Petitioner at page 26 (“Hearing on Application’):

“Q. Now, on your budget, Mr. Lammers, and it’s in

that application which is before you—is it your

Statement to this Commissioner that from mort-

gage loans of 1.2 million in your first year of

operation, you are going to make $90,000 for

the association? income.”

The statement made by Petitioner that “upon the basis

of those documents [Respondent’s application for charter]

the trial court held that the Commissioner’s order grant-

ing the application for charter was ‘valid as to form’ and

‘reasonably supported by substantial evidence’” is mere

argument, in addition to being incorrect; and the in-

correctness of such statement has been shown herein

under other headings.

The Supreme Court of Texas, here, in discussing the

Texas law since Gerst v. Nixon, Tex. , 411 S.W.

2d 350 (1966), concluded with the statement that

“Through the process of official notice, the application,

including the documents attached to the application as

a part of it, becomes a part of the record in the matter.

(Citation)” The Supreme Court of Texas, then, after so

stating the applicable law, merely interpreted the state-

ment made by the Hearing Officer and, upon doing so,

interpreted that statement as constituting official notice

by the Savings and Loan Commissioner of the data

furnished with the application such that all of the data

was before him and became a part of the record before

the Commissioner.

Therein lies the heart of this matter, insofar as the

jurisdiction of this Court is concerned. The decision of

the Supreme Court of Texas rested on purely local or

State (non-federal) grounds. The dissenting opinion of

two members of the Supreme Court of Texas, as did the

opinion of the Court of Civil Appeals, resulted solely

from a disagreement among the Justices as to the inter-

pretation to be given to two state court decisions and

to the statement by the Hearing Officer. Those two state

court decisions are Gerst v. Nixon, supra, and Citizens

of Texas Savings & Loan Association v. Lewis, Savings

and Loan Commissioner, supra. This Court has con-

sistently declined to involve itself in such matters, even

if this Court might have reached a conclusion to the

contrary.

Contrary to the statement of Petitioner, which is mere

argument, such interpretation of the Hearing Oflfice;’s

Statement by the Supreme Court of Texas is not in-

consistent with any other statement made by the Hearing

Officer upon the administrative hearing.

Nothing in the decision of the Supreme Court of Texas

either changes or in anywise affects existing law on either

the matter of burden of proof or the matter of burden of

persuasion in hearings before the Savings and Loan

Commissioner of Texas. Indeed, that this is so is made

quite clear in the opinion of the Supreme Court of ‘Texas.

THE ARGUMENT

The State Court Decision Rests on Local Grounds

It has already been pointed out herein, above, that

the decision of the state court rests solely on mere inter-

pretation by the state court of two state couri decisions

and a statement by the Hearing Officer, matters which

are purely state or local (non-federal) questions. This

Court has consistently held that it has no power to review

such matters and that it has no concern about the correct-

ness or incorrectness of the conclusions reached by the

state court in such matters. United Gas Public Service

Company v. State of Texas, 303 U.S. 123, 82 L.Ed. 702

(1937), reh. den., 303 U.S. 667, 82 L.Ed. 1124 (1938);

and Moffitt v. Kelly, 218 U.S. 400. 54 L.Ed. 1086

(1910).

The State Court Has Not Decided a Federal Question

Respondent has already pointed out herein, above, that

Petitioner's claim of being denied due process of law by

the evidence ruling of the trial court is a mere fiction.

Respondent has already pointed out, also, that Petitioner's

claim of being denied due process of law by the Com-

missioner, as a result of his consideration of the data

furnished with the application, was neither timely nor

properly raised, below. Neither was such claim presented

to or decided by the Supreme Court of Texas. And,

Respondent has pointed out that the state court’s decision

rested solely on the state court’s interpretation of two

state court decisions and interpretation of a statement

by the Hearing Officer. The state court did not construe,

and did not have to construe, any of the state statutes

involved because they are clear and unambiguous.

No federal question was either presented to or decided

by the state court, here. This Court has repeatedly held

that it is without jurisdiction under those circumstances.

Congress of Industrial Organizations v. Robert E. Mc-

Adory, 325 U.S. 472, 89 L.Ed. 1741 (1944); South-

western Bell Telephone Company vy. State of Oklahoma,

303 U.S. 206, 82 L.Ed. 751 (1937); and Cox v. State

of Texas, 202 U.S. 446, 50 L.Ed. 1099 (1905).

Petitioner Neither Timely Nor Properly Raised

the So-Called Federal Question

Neither by motion for rehearing before the Savings and

Loan Commissioner of Texas nor by pleadings or motion

upon judicial review of the administrative order in the

district court, nor, for that matter, in either the Court

of Civil Appeals or the Supreme Court of Texas, did

Petitioner either allege or contend that consideration by

the Savings and Loan Commissioner of the data furnished

with Respondent's application for charter deprived Peti-

tioner of due process of law. Likewise, Petitioner did not

at either level question the constitutionality of those

sections of the Texas Savings and Loan Act which ex-

pressly authorized such consideration of that data by the

Savings and Loan Commissioner. Actually, Petitioner has

not so questioned those sections of the Texas Savings

and Loan Act, here, except perhaps impliedly. Nor has

Petitioner even suggested that the District Court and the

Texas Supreme Court had to construe those clear and

unambiguous statutes in deciding the case.

The law of the State of Texas is the same as the deci-

sions of this Court, insofar as the time and manner of

raising or preserving a constitutional point of error is

concerned. In an ordinary action, not involving judicial

review of an order of an administrative agency, the

Supreme Court of Texas has held that it will decline to

answer the question where it has not been raised in the

trial court. Wood v. Wood, 159 Tex. 350, 320 S.W.2d

807 (1959).

This Court has consistently held that when the federal

question has not been presented prior to the decision

by the court of last resort of the state, it comes too late.

Cox v. State of Texas, supra; and Miller v. State of Texas,

153 U.S. 535, 38 L.Ed. 812 (1893).

This Court has held in a number of cases involving

orders of administrative agencies that objections to the

proceedings of an administrative agency must be made

while it has opportunity for correction in order to raise

issues reviewable by the courts, and that courts should

not topple over administrative decisions unless the ad-

ministrative body not only has erred but has erred against

objection made at the time appropriate under its practice,

and that an objection or claim such as the one being

made by Petitioner, here, comes too late, when made

for the first time in and by a petition in the District Court

to set aside the administrative order. United States v.

L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 97 L.Ed.

54 (1952); United States v. Capital Transit Company,

338 U.S. 286, 94 L.Ed. 93 (1949), reh. den., 338 U.S.

901, 94 L.Ed. 554; Unemployment Compensation Com-

mission of the Territory of Alaska v. Aragon, 329 US.

143, 91 L.Ed. 136 (1946); United States Ex Rel.

Vajtauer v. Commissioner of Immigration, 273 U.S. 103,

71 L.Ed. 560 (1926); Federal Power Commission v.

Colorado Interstate Gas Company, 348 U.S. 492, 99

L.Ed. 583 (1954); National Labor Relations Board v.

Seven-Up Bottling Company of Miami, Inc., 344 US.

344, 97 L.Ed. 377 (1952); and Sunray Mid-Continent

Oil Company v. Federal Power Commission, 364 US.

137, 4 L.Ed.2d 1623 (1960).

Should there be deemed to be a distinction between

the cases just cited and the instant case because of the

fact that a motion for rehearing before the Commissioner

was not mandatory, here, then, as Respondent has already

pointed out herein, above, neither did Petitioner in its

pleadings upon judicial review in the District Court claim

or allege that it had been denied due process of law by

the Savings and Loan Commissioner as a result of the

Commissioner’s consideration of the data furnished with

Respondent’s application for charter.

Decision of State Court Rests on Still Other

Adequate Independent State Grounds

The decision of the Supreme Court of Texas rests on

still other and further adequate and substantial indepen-

dent state or non-federal grounds. It has already been

pointed out that, insofar as Petitioner’s “official notice”

contention is concerned, the decision of the state court

rested on that court’s interpretation of two state court

decisions and that court’s interpretation of a statement

made by the Hearing Officer. The decision of the state

court rests, also, on adequate and substantial state grounds

that have no relation to Petitioner's “official notice”

contention.

This Court has consistently held that it will not review

a decision by the highest court of a state where there

are two grounds for the decision only one of which in-

volves a federal question ond the other state or local

ground is substantial, adequate and sufficient to maintain

or support the judgment of the state court, and this Court

will accept the decision whether right or wrong without

considering the federal question that may have been

presented. Gaar, Scott & Company v. Shannon, 223 U.S.

468, 56 L.Ed. 510 (1911); Waters-Pierce Oil Company

v. State of Texas, 212 U.S. 112, 53 L.Ed. 431 (1908);

Bacon v. State of Texas, 163 U.S. 207, 41 L.Ed. 132

(1895); Nickel v. Cole, 256 U.S. 222, 65 L.Ed. 900

(1920); Minneapolis, St. Paul, & Sault Ste. Marie Rail-

way Company v. Washburn Lignite Coal Company, 254

U.S. 370, 65 L.Ed. 310 (1920): Arkansas Southern Rail-

road Company v. German National Bank, 207 U.S. 270,

52 L.Ed. 201 (1907); and Broad River Power Company

v. State of South Carolina, 281 U.S. 537. 74 L.Ed. 1023

(1929).

There was no evasion of a federal question by the

State court, here. Petitioner has at least suggested that

the Supreme Court of Texas would not concern itself with

a federal question, even if timely and properly raised, if

the administrative order is otherwise reasonably sup-

ported by substantial evidence. That this is not so is

shown in Lewis, Savings and. Loan Commissioner v.

Metropolitan Savings and Loan Association, Tex.

___, 550 §.W.2d 11 (1977). See, also, Lewis, Savings

and Loan Commissioner v. Guaranty Federal Savings and

Loan Association, 483 S.W.2d 837 (Tex. Civ. App.

1972; writ of error denied by Supreme Court of Texas

with the notation “Refused. No Reversible Error”).

The exceptions to the adequate independent state

grounds doctrine, represented by Fay v. Noia, 372 U.S.

391, 9 L.Ed.2d 837 (1963), and Henry v. Mississippi,

379 US. 443, 13 L.Ed.2d 408 (1965), obviously are

not applicable, here. This is neither a habeas corpus

proceeding nor a direct review of a judgment in a crim-

inal case involving a decision resting on independent

State grounds which are purely procedural and serve no

legitimate state interest.

The Supreme Court of Texas held, here: “However,

even if it may be said the application was erroneously

admitted into evidence in the trial court, it was not

essential to support the Commissioner’s order”; that

those portions of the application which were used by the

Commissioner “in finding the underlying facts support-

ing his order” were “also included in the direct testimony

by witnesses and exhibits offered by the applicants for

the charter, thus the documents were cumulative of the

direct evidence offered before the Commissioner”.

Respondent’s application for writ of error in the Su-

preme Court of Texas was granted on the sole point that

the Court of Civil Appeals had erred in holding that the

admission in evidence by the District Court of Re-

spondent’s application for charter amounted to such a

denial of Petitioner’s rights as was reasonably calculated

to cause and probably did cause the rendition of an im-

proper judgment in the case. Then, upon submission of

the case, the Supreme Court of Texas decided the ad-

ditional points of error contained in Respondent’s ap-

plication for writ of error.

It has been held that the purposes to be served by re-

quiring statements of underlying facts in an order of the

Savings and Loan Commissioner [required by Section

11.11(4) of the Savings and Loan Act] are to inform

the losing party of the testimony and other evidence

relied upon by the Commissioner so that such party may

intelligently prepare and present an appeal from such

order to the District Court and to assist the District

Court and appellate courts in properly exercising their

function of reviewing that order. Security Savings and

Loan Association of Dickinson v. Lewis, Savings and

Loan Commissioner, 515 S.W.2d 392 (Tex. Civ. App.

1974; no writ). To the same effect, although involving

an order of the Railroad) Commission, is Miller v. Rail-

road Commission of Texas, Tex... 363 S.W.2d

244 (1962).

Contrary to what Petitioner would have this Court

believe, the bulk of the contents of the documents com-

prising Respondent's application for charter were not

even considered or relied upon by the Savings and Loan

Commissioner, as is evidenced by the statements of un-

derlying facts in the order. Insofar as that very small

portion of the contents of the application which were

relied upon and utilized in the order as underlying facts

is concerned, most of such evidence is merely cumula-

tive of other competent evidence to the same effect or of

like import contained in the Commissioner’s certified

record and the remainder of such evidence is wholly

‘al.

It has been held that the erroneous admission of evi-

dence is not grounds for and does not justify reversal of

a judgment, where such objectionably evidence is merely

cumulative of other competent evidence to the same

effect or of like import. Lynch Oil Company v. Shepard,

242 S.W.2d 217 (Tex. Civ. App. 1951; writ refd.);

Hanks v. LaQuey, 425 S.W.2d 396 (Tex. Civ. App.

1968; refd. n.r.e.); Lusinger v. Philpott, 392 S.W.2d

217 (Tex. Civ. App. 1965; ref'd. n.r.e.); Aetna Casualty

& Surety Company v. Depoister, 393 $.W.2d 822 (Tex.

Civ. App. 1965; ref'd n.r.e.); Blakney v. Panhandle &

Santa Fe Railway Company, 381 S.W.2d 143 (Tex. Civ.

App. 1964; ref'd n.r.e.); Drake v. Walls, 348 S.W.2d 62

(Tex. Civ. App. 1961; ref'd. n.r.e.); Brown v. Dale, 395

S.W.2d 677 (Tex. Civ. App. 1965; ref'd. n.r.e.); and

Mueller v. Central Power & Light Company, 403 S.W.2d

901 (Tex. Civ. App. 1966; no writ).

Likewise, it has been held that the erroneous admission

of evidence is not grounds for and does not justify

reversal of a judgment, where such evidence is wholly

immaterial (that is, where the case does not turn on such

evidence). Kirby Lumber Company v. Southern Lumber

Company, 192 S.W.2d 460, affd., 145 Tex. 151, 196

S.W.2d 387 (1946); Miller v. Esunas, 401 S$.W.2d 150

(Tex. Civ. App. 1966; ref'd. n.r.e.); Altum v. Booth,

399 S.W.2d 836 (Tex. Civ. App. 1966; no writ); and

Flores v. Missouri-Kansas-Texas Railroad Company,

365 S.W.2d 379 (Tex. Civ. App. 1963; ref’d. n.r.e.).

It is, also, the law of the State of Texas that error in ad-

mitting evidence in a non-jury trial is not grounds for and

does not justify reversal of the judgment of the district

court, where there is other competent evidence to support

the judgment. Furthermore, it will be presumed that the

district court disregarded th> inadmissible evidence. Ful-

bright v. Culberison, 429 S.W.2d 179 (Tex. Civ. App.

1968; ref'd. n.r.e.); Sharkey v. Hollums, 400 S.W.2d

353 (Tex. Civ. App. 1966; refd. n.r.e.); Haynes, v.

Henderson, 345 S.W.2d 857 (Tex. Civ. App. 1961;

ref'd. n.r.e.); Stevens Brothers v. Mills, 336 S.W.2d 921

(Tex. Civ. App. 1960; ref'd. n.r.e.); Yzaguirre v. State

of Texas, 427 S.W.2d 687 (Tex. Civ. App. 1968; no

writ); Brunswick Corporation v. Suburban Bowling,

Inc., 398 S.W.2d 294 (Tex. Civ. App. 1967; no writ);

and Hall v. Hall, 352 S.W.2d 765 (Tex. Civ. App.

1962; no writ).

Such is the case, here. That is to say, as is shown by

the statements of underlying facts in the order of the

Savings and Loan Commissioner, which has been re-

produced in the Petition For Writ of Certiorari as Ex-

hibit A (page 25 thereof). there is other competent evi-

dence in the Commissioner's certified record to support

the ultimate findings made by the Commissioner and the

judgment of the District Court. Upon consideration of

the other competent evidence, of which the objectionable

evidence was merely cumulative, it cannot be reasonably

concluded that the Commissioner or the District Court

would have reached a contrary result if the Commissioner

and the District Court had had before them for their

consideration only such other competent evidence. This

is precisely what the Supreme Court of Texas has held,

here.

It was not the function of the District Court to deter-

mine de novo the ultimate issues under Section 2.08 of

the T xas Savings and Loan Act. The function of the

District Court was to make a determination on a pure

question of law, to-wit, whether or not the Commissioner

acted arbitrarily and without regard to the facts; and, the

principal test applicable thereto is whether or not the

Commissioner’s ultimate findings are reasonably supported

by substantial evidence. Gerst v. Nixon, supra. It has

already been pointed out herein, above, that one of the

purposes to be served by requiring statements of under-

lying facts in an order of the Savings and Loan Com-

missioner is to assist the District Court in properly exer-

cising his function of reviewing that order. Consequently,

in performing that judicial function, the District Court

must review the same evidence which the Commissioner

relied upon, as reflected in the statements of underlying

facts in the order. And, the presumption is, under the

authorities cited herein, above, that in doing so the Dis-

trict Court disregarded the inadmissible evidence and

considered only the other competent evidence in the

Commissioner’s certified record.

Respondent probably does not have to demonstrate to

this Court, under the adequate independent state grounds

doctrine, as it did in the Supreme Court of Texas, that

the evidence complained of was either cumulative of

other competent evidence in the Commissioner’s certi-

fied record or was wholly immaterial and that, conse-

quently, the Supreme Court of Texas was correct in reach-

ing the conclusion which it did on that point. However,

Respondent is sufficiently uncertain of that portion of

the adequate independent state grounds doctrine having

to do with this Court’s lack of power to decide the cor-

rectness or incorrectness of the state court’s decision on

such grounds, that Respondent deems it necessary to dem-

onstrate this point to at least some extent, here, although

not to the lengths that Respondent did so in the Supreme

Court of Texas.

It has already been pointed out that the order of the

Savings and Loan Commissioner has been reproduced

as an exhibit in the Petition For Writ of Certiorari. The

evidence complained of is easily distinguishable from the

other competent evidence in the Commissioner’s certified

record. References in the statements of underlying facts

in the order to “H. on Appl., p. . . .” and to “Applicant’s

Exhibit No. . . .” are references to that other competent

evidence in the Commissioner’s certified record. By com-

paring the one with the other, on each ultimate finding

of fact made by the Commissioner, the inescapable con-

clusion is reached that the decision of the Supreme Court

of Texas and of the District Court on this point was a

correct one. For example, without laboring the point, it

can be seen that the data furnished with the application

which was utilized as underlying fact le [page 29 of the

Petition For Writ of Certiorari] is merely cumulative of

the other competent evidence utilized as underlying facts

lg and 1j [page 30 of the Petition For Writ of Certiorari].

All of the other competent evidence of which the

objectionable evidence is merely cumulative was received

in evidence without objection, upon the hearing before the

Savings and Loan Commissioner.

Contents of the application utilized as underlying fact

Id in the order are wholly immaterial because the “pre-

requisite” to which such evidence pertains is not “appli-

cable”. It is not applicable because such stock obviously

cannot be issued by Respondent until its application

for a savings and loan association charter has been

finally approved through the final adjudication of this

cause. Likewise, for the same reasons, that portion of the

contents of the application utilized as underlying fact If

pertaining to “ir advance of issuance” is wholly imma-

terial.

The only issues which were actually contested, in the

sense of both sides adducing evidence thereon at the hear-

ing, were the issues pertaining to public need, volume of

business and possibile undue harm to existing associations,

those issues being the requirements under Sections 2.08 (3)

and 2.08(4) of the Savings and Loan Act. On those issues,

in Only one instance were contents of the application

utilized in the order as underlying facts. That one instance

was the evidetce utilized as underlying facts 9b [page 39

of the Petition For Writ of Certiorari] and 10a [page 51

of the Petition For Writ of Certiorari], and was some of

the contents of the instrument entitled “City Savings

Association — League City, Texas — Projected Income

and Expense”. That instrument or document was part

of the data furnished with Respondent's application. Coun-

sel for Petitioner and counsel for other protestants had

examined that instrument or document in connection with

their examination of Respondent’s entire application for

charter, prior to the hearing before the Commissioner; had

such instrument or document before them at the hear-

ing; and cross-examined Respondent’s witness, Lammers,

at length about the contents of such ins'rument or docu-

ment (H. on Appl., pages 26-30). In addition, that par-

ticular evidence, too, was merely cumulative of other

competent evidence utilized in the underlying facts sup-

porting the ultimate findings on public need, sufficient

volume of business and no undue harm to existing associa-

tions.

Rule 503, Texas Rules of Civil Procedure, is not unlike

28 U.S.C. § 2111 and Rule 61, Federal Rules of Civil

Procedure. And, the decisions of the federal courts are

completely consistent and compatible with the Texas

cases cited herein, above. construing Rule 503, on the

matter of any error in the admission or exclusion of evi-

dence being harmiess where the evidence allegedly im-

properly admitted or excluded was merely cumulative of

other competent evidence of like or similar import. Se-

lected Investments Corporation v. Duncan, 260 F.2d 918

(10th Cir. 1958), cert. den., 359 U.S. 914, 3 L.Ed. 2d

576 (1959): American Motorists Insurance Company y.

Landes, 252 F.2d 751 (Sth Cir. 1958): Brooks v. Texas

General Indemnity Company, 251 F.2d 15 (Sth Cir.

1958): Gordon v. Robinson, 210 F.2d 192 (3rd Cir.

1954): and Masterson vy. Pennsylvania Railroad Com-

pany, 182 F.2d 793 (3rd Cir. 1950).

The decision of the Supreme Court of Texas rests on

substantial, adequate and sufficient independent state or

non-federal grounds.

CONCLUSION

No federal question is before this Court. No federal

question was before the Supreme Court of Texas. No

federal question was decided by the Supreme Court oi

Texas. No federal question was either timely or properly

raised, below, by Petitioner. The only possible federal

question in this cause has been raised and presented tor

the first time in this Court. The decision of the Supreme

Court of Texas rests on adequate and substantial in-

dependent non-federal or state grounds.

The Petition For Writ of Certiorari should be dis-

missed. In the alternative, the Petition For Writ of Certi-

orari should be denied. In either event, all costs should

be taxed against Petitioner.

ee submitted,

PP m4

Dow H. HEARD

1300 First City eas?

Bank Building

1001 Main Street

Houston, Texas 77002

Counsel for Respondent

Other Counsel for Respondent:

ROBERT J. HEARON, JR.

P. O. Box 98

Austin, Texas 78767

LoweELt B. Hays

1300 First City National

Bank Building

Houston, Texas 77002

CERTIFICATE OF SERVICE

I, Dow H. Heard, a member of the Bar of the Su-

preme Court of the United States, hereby certify that I

have served three (3) copies of the foregoing “Brief in

Opposition to Petition for Writ of Certiorari” on counsel

for Petitioner by depositing same in a United States

post office, with first class postage prepaid, addressed to

Mrs. Mary Joe Carroll, P. O. Box 1148, Austin. Texas.

78767, on this 12% ay of June, 1978.

A as

Dow H. HEARD

APPENDIX

CONSTITUTIONAL PROVISIONS.

STATUTES AND RULES

Texas Savings and Loan Act, Article 852a, Revised

Civil Statutes of the State of Texas:

“Sec. 2.01. Application for a charter for a sav-

ings and loan association may be made by five

(5) or more citizens of this State (hereinafter

referred to as incorporators) by tendering to the

Commissioner along with the proper filing fee, an

application consisting of the following:

“(1) Two (2) copies of Articles of incorpora-

tion for the proposed association stating (i) the

name of the association, (ii) the site of the principal

office and (iii) the names and addresses of the

initial directors.

“(2) A statement as to (i) the amount, if any.

of Permanent Reserve Fund Stock which has been

subscribed and paid for at the time of filing, (ii) the

names and addresses of such subscribers and the

amount subscribed by each, (iii) the amount of

savings liability, if any, with which the association

will commence business, (iv) the amount of paid-in

surplus or expense fund with which the association

will commence business.

“(3) Two (2) copies of the bylaws under which

the association proposes to operate.

“(4) Statements, exhibits, maps and other data

sufficiently detailed and comprehensive as to enable

the Commissioner to pass upon the matters set forth

in Section 2.08(2), (3) and (4) of this Act and

such other information in regard to the proposed

association and its operation as may be required

by duly promulgated rules and regulations of the

Commissioner and the Building and Loan Section

of the Finance Commission of Texas.

“The Articles of incorporation and all statements

of fact tendered to the Commissioner in connection

with an application for charter shall be subscribed

and sworn to under the sanction of an oath, or such

affirmation as is by law equivalent to an oath, made

before an officer authorized to administer oaths.

“Sec. 2.02 The charter of an association may

provide for the issuance of Permanent Reserve Fund

Stock. No other form or type of stock or shares

may be issued. Such Permanent Reserve Fund Stock,

when issued, may not be retired or withdrawn except

as hereinafter provided, until after all liabilities of

the association shall have been satisfied in full, in-

cluding the withdrawal value of all savings accounts.

Such stock must be fully paid for in cash in advance

of issuance and the association may not make any

loais against the shares of such stock. Shares of such

stock may be issued with par value of not less than

One Dollar ($1) nor more than One Hundred Dol-

lars ($100). With the prior written approval of the

Commissioner as to the number of shares to be

issued, the bylaws of an association may provide

that its Permanent Reserve Fund Stock may be

issued with no par value. An association authorized

to issue such stock must have at all times issued

and outstanding stock with a value on its books of

at least Twenty-five Thousand Dollars ($25,000)

or two and one-half per cent (242%) of its gross

assets, whichever is greater, but no association shall

be required to have an amount of such stock with

a value on its book of more than Two Hundred and

Fifty Thousand Dollars ($250,000). Associations

whose savings accounts are insured by the Federal

Savings and Loan Insurance Corporation may re-

tire in whole or in part any such stock heretofore

issued when such associations are authorized to do

so by a majority vote_at any annual meeting of its

members, or any special meeting of members called

for such purpose: provided, that the basis of such

retirement shall have been first approved by the

Commissioner and consent to such retirement upon

the part of the Federal Savings and Loan Insurance

Corporation has been filed in writing with the Com-

mission.

“Sec. 2.03. Incorporators of proposed associations

with authority to issue Permanent Reserve Fund

Stock, as a prerequisite to the approval of an ap-

plication for a charter shall be required to have

subscribed and paid for in cash to the credit of the

proposed association an aggregate amount of Perma-

nent Reserve Fund Stock as the Commissioner shall

specify within the limits set for such stock in the

preceding Section. Such stock shall be issued within

thirty (30) days from the date of incorporation.

“Sec. 2.04. As a prerequisite to approval of any

application for a proposed association with authority

to issue Permanent Reserve Fund Stock the Com-

missioner may require in addition to the amount

paid in for such stock a paid-in surplus up to but

not in excess of the aggregate amount of the Perma-

nent Reserve Fund Stock required under the pre-

ceding Section. Such paid-in surplus may be used

in lieu of earnings to pay organization and operating

expenses, dividends on savings accounts and to meet

any loss reserve requirements. If the application

should not be approved or if the proposed associa-

tion does not proceed to do business, the stock sub-

scriptions for Permanent Reserve Fund Stock and

paid-in surplus shall be returned pro-rata to the

subscribers, less any lawful expenditures.

“Sec. 2.05. As a prerequisite to the approval of an

application for a charter of an association without

Permanent Reserve Fund Stock the incorporators

must show to the satisfaction of the Commissioner

“Sec. 2.06. In addition to the savings account

subscriptions required by the preceding tion the

incorporators of an association without Permanent

Reserve Fund Stock must show to the satisfaction

of the Commissioner .. .

“Sec. 2.07. When a proper application for a

charter has been filed, the Commissioner shall cause

public notice of such application to be given and

give any interested party an opportunity to appear,

present evidence and be heard for or against such

application.

“Sec. 2.08. The Commissioner shall not approve

any charter application unless he shall have affirma-

tively found from the data furnished with the appli-

cation, the evidence adduced at such hearing and

his official records that:

“(1) The prerequisites, where applicable, set forth

in Sections 2.02, 2.03, 2.04, 2.05, and 2.06 have

been complied with and that the Articles of in-

corporation comply with all other provisions of this

Act;

“(2) the character, responsibility and general fit-

ness of the persons named in the Articles of in-

corporation are such as to command confidence and

warrant belief that the business of the proposed

association will be honestly and efficiently conducted

in accordance with the intent and purpose of this

Act and that the proposed association will have

qualified fulltime management;

“(3) there is a public need for the proposed

association and the volume of business in the com-

munity in which the proposed association will con-

duct its business is such as to indicate profitable

operation;

“(4) the operation of the proposed association

will not unduly harm any existing association.

“If the Commissioner so finds, he shall state his

findings in writing and issue under his official seal

a certificate of incorporation and deliver a copy of

the approved Articles of incorporation and bylaws

to the incorporators and retain a copy thereof as a

permanent file of his office, whereupon the proposed

association shall be a corporate body with perpetual

existence unless terminated by law and may exercise

the powers of a savings and loan association as

herein set forth.

* * * tk 3s

“Sec. 11.11. (1)... Notice of all other hearings

held under any provision of this Act shall be given

to all associations and Federal associations in the

county where the subject matter of the hearing is or

will be situated.

“(2) Opportunity shall be afforded any interested

party to respond and present evidence and argument

on all issues involved in any hearing held under any

provision of this Act.

“(3) Upon the written request of any interested

party the Commissioner shall keep a formal record

of the proceedings of any hearing held under any

provision of this Act.

“(4) . . . [set out by Petitioner]

“(5) A decision or order entered after hearing

shall be final and appealable fifteen (15) days after

the day the same is entered unless a motion for

rehearing is filed by a party within such time and

if the motion for rehearing is overruled such decision

or order shall be final and appealable from and after

the date the order overruling such motion is entered.

“(6) Parties to a hearing shall be promptly noti-

fied either personally or by mail of any decision,

order or other action taken in respect to the subject

matter of the hearing.

“Sec. 11.12. Any party with an interest in the

subject matter thereof who is dissatisfied with any

act, order, ruling or decision of the Commissioner

taken or made, or with any rule or regulation promul-

gated by the Commissioner and the Building and

Loan Section of the Finance Commission in con-

nection with the administration of this Act, may

secure judicial review thereof in the following man-

ner:

“(1) Venue. (a)....

“(b) Proceedings for review of other acts, orders,

rulings or decisions of the Commissioner or of any

rule or regulation promulgated by the Commissioner

and the Building and Loan Section of the Finance

Commission may be instituted by filing a petition

as in a civil action generally against the Commis-

sioner, as defendant, in a district court of Travis

County and not elsewhere.

“(2) Time for Filing. Any petition for judicial

review must be filed within thirty (30) days after

the action, order, ruling or decision of the Com-

missioncr is final or the rule or regulation com-

plained of is promulgated.

“(3) Stay of Enforcement. ....

“(4) .... [set out by Petitioner]

ot) >. Se \ ae

“(b) .... [Set out by Petitioner]

“(6) Burden of Proof and Judgment. The burden

of proof shall be on the plaintiff. The reviewing

court may affirm the action complained of or re-

mand the matter to the Commissioner for further

proceedings.

“(7) Appeals. Appeals from any final judgment

may be taken by either party in the manner provided

for in civil actions generally, . . .”

Texas Rules of Civil Procedure, Rule 503:

“Provided, first, that no judgment shall be re-.

versed on appeal and a new trial ordered in any

cause on the ground that an error of law has been

committed by the trial court in the course of the

trial, unless the appellate court shall be of the

opinion that the error complained of amounted to

such a denial of the rights of the petitioner as was

reasonably calculated to cause and probably did

cause the rendition of an improper judgment in the

GMO, - + 2

“ %9

28 U.S.C. § 2111:

“On the hearing of any appeal or writ of cer-

tiorari in any case, the court shall give judgment

after an examination of the record without regard

to errors or defects which do not affect the sub-

stantial rights of the parties.”

Federal Rules of Civil Procedure, Rule 61:

“No error in either the admission or the exclu-

sion of evidence and no error or defect in any ruling

or order or in anything done or omitted by the

court or by any of the parties is ground for grant-

ing a new trial or for setting aside a verdict or for

vacating, modifying, or otherwise disturbing a judg-

ment or order, unless refusal to take such action

appears to the court inconsistent with substantial

justice. The court at every stage of the proceeding

must disregard any error or defect in the proceed-

ing which does not affect the substantial rights of

the parties.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.