Opposition — Boone v. J & M McKee

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IN THE

Supreme Court of the United States

OcTrober TerRM, 1978

No. 78-85

Davin B. Boonr, Ova McCoy, Jr.

AND McCoy Farms, Inc., Petitioners,

Vs.

J & M MckKer, a PartnersHtp COMPOSED OF

Joun B, McKer, Jr., AnD MArGARET MCKEE,

Respondents,

RESPONSE TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT

OF ARKANSAS

Ropert C, Comrron

423 North Washington

El Dorado, AR 71780

Counsel for Respondents

August 16, 1978

—————

Passes oy Braon S. AvAmMs Paintine, Inc., Wasuincton, D. C.

Page

STATEMENT OF THE CASE ...... ccc ccccececccececeecs 1

REASONS FOR DENYING WRIT ........cccccsccecvccees 2

1. The Case Does Not Present a Federal Question

of Substance Not Heretofore Determined by This

SE <chUes BceuaeEel Geis ak deere Avec baaaneh ae 2

2. The Decision of the Arkansas Supreme Court

Does Not Conflict With the Decisions of This

Court in Criminal Cases ..........cccccccseees 5

3. The Decisions Below Does Not Conflict With

Decisions of Other State and Federal Courts... 7

RL”. sak wed Ria dbawae seen desewe ena tetera. 7

CITATIONS

CasEs:

Chandler v. Fregan, 348 U.S. 3 (1954) .............. 3

Chapman v. California, 386 U.S. 18 (1967) .......... 5

Fahy v. Connecticut, 375 U.S. 85 (1963) ............ 5

Goldberg v. Kelly, 397 U.S. 254 (1970) ............ 4

Holloway v. Arkansas, 98 S. Ct. 1173 (1973) ......... 3

Mendoza v. Small Claims Court, 49 Cal.2d 66, 321 P.2d

ee rcees ch kee cWhae see awAs bas boo a00 ¥e8 7

Powell v. Alabama, 287 U.S. 45 (1982) .............. 3

Robert v. Anderson, 66 F. 2d 874 (10 Cir. 1933) ...... 7

Simon v. Liberman, 193 Neb. 321, 226 N.W. 2d 781

CRUE bc Gey ee eee beard cdc awe bas cecesoees 7

Steen v. Board of Civil Service Commissioners, 160

P. 2d 816, 26 Cal. 2d 716 (1945) ...............6. 7

Yutterman v. Grier, 112 Ark. 336, 166 S.W. 749 ...... 6

IN THE

Supreme Court of the United States

OctToBER TERM, 1978

No. 78-85

Davin B. Boonr, Ova McCoy, Jr.

AND McCoy Fars, INc., Petitioners,

VS.

J & M McKer, a PAartNERSHIP COMPOSED OF

JoHN B. McKeen, Jr., AnD MaraaretT McKEs,

Respondents.

RESPONSE TO THE PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME COURT

OF ARKANSAS

The respondents, J & M McKee, a partnership com-

posed of John B. McKee, Jr. and Margaret McKee,

respectfully pray that the petition for a writ of certi-

orari filed herein by the petitioners, David B. Boone,

Oval McCoy, Jr. and McCoy Farms, Inc., to review the

judgment of the Arkansas Supreme Court entered in

this proceeding on April 17, 1978, be denied.

STATEMENT OF THE CASE

The petitioners gave respondents a deed of trust on

lands in Ouachita County, Arkansas, as security for a

promissory note. After default, the respondents insti-

tuted foreclosure proceedings in the Chancery Court of

Ouachita County, Arkansas.

2

The petitioners were represented by T. H. Freeland,

III, a member of the Mississippi bar, and John E.

Gaughan, ITI, an Arkansas attorney. The respondents

were represented by Robert C. Compton and Eugene

D. Bramblett, Arkansas attorneys, in association with

Edward T. Hamlet, a member of the Tennessee bar.

At the beginning of the trial, counsel for the respond-

ents requested the rule and asked the court to exclude

as potential witnesses, Eugene D. Bramblett, Edward

T. Hamlet and John E. Gaughan, ITI R. 88-90. Upon

the granting of the motion, petitioners’ Mississippi

counsel moved for a continuance until another Arkan-

sas counsel could be obtained R. 90. That motion was

overruled and the trial proceeded with the petitioners

represented by their Mississippi counsel.

The trial court entered a decree of foreclosure, R.

41-49, and, on appeal to the Supreme Court of Arkan-

sas, the petitioners asserted, among other things, that

the trial court abused its discretion by excluding their

Arkansas counsel from the courtroom during the trial.

The Supreme Court of Arkansas affirmed the trial

court’s decree of foreclosure and held that, although

the trial court erred in excluding the petitioners’ Ar-

kansas attorney from the courtroom, there was no

prejudice to petitioners in the ultimate result and,

therefore, the harmless error rule applied, Appendix

A at 4a-5a.

REASONS FOR DENYING THE WRIT

1. The Case Does Not Present a Federal Question of Substance

Not Heretofore Determined by This Court.

The petitioners ask this court to grant the writ of

certiorari to determine the scope of due process as ap-

plied to the right to counsel in civil proceedings.

a

3

The petitioners cite Powell v. Alabama, 287 U.S. 45

(1932) which dealt with the issue of requiring local

counsel where the defendants were represented in a

state criminal trial by an out of state attorney. The pe-

titioners also rely on this court’s decisions in Chand-

ler v. Fretag, 348 U.S. 3 (1954), and Holloway v. Ar-

kansas, 98 8. Ct. 1173 (1973). In Chandler the issue

involved the refusal of the trial court to grant a con-

tinuance to allow a defendant in a criminal trial time

to employ counsel of his own choice. Holloway involved

the issue of the trial court’s refusal to appoint separate

counsel for three co-defendants in a state criminal

trial.

The Powell-Chandler-Holloway line of decisions, on

which the petitioners rely, are factually distinct from

the case at bar.

Here, from the time of their first appearance in this

action, the petitioners were represented by co-counsel

of their own choice, T. H. Freeland, ITI, and John E.

Gaughan, III. Both attorneys signed the answer and

counterclaim, which was the initial pleading filed on

behalf of the petitioners, R. 24-28, and this practice

continued with the filing of all subsequent pleadings.

Throughout the trial in the court below, the peti-

tioners were represented by T. H. Freeland, ITI, one of

their attorneys of choice. They now argue, as they did

before the Supreme Court of Arkansas, that with the

exclusion of their Arkansas counsel from the court-

room, they were left only with their Mississippi coun-

sel, whose familiarity with Arkansas law and trial

procedure was somewhat limited. Yet, on the issue of

the admissability of parole evidence which was the

only issue in the trial requiring particular knowledge

4

of Arkansas law, the petitioners’ Mississippi counsel

cited four Arkansas cases in support of his position,

R. 93-95. That the petitioners were ably represented

by their Mississippi counsel in the court below is self

evident. The petitioners, even at this late date, have

failed to point out any evidence or legal arguments

which were available, but not presented by their Mis-

sissippi counsel.

The Arkansas Supreme Court, reviewing the case de

novo, found that the petitioners had not been preju-

diced by the exclusion of their Arkansas counsel from

the courtroom. Justice Fogleman, in the majority

opinion, said:

‘“We do not see how appellants have been preju-

diced by the exclusion of its only Arkansas attor-

ney from the proceedings. The facts seem to be un-

disputed. The legal question seems to have been

adequately presented. [t has been presented here

on trial de novo and the law firm of the excluded

attorney has apparently participated in appel-

lants’ brief, as its name appears thereon. Yet no

attempt was made to have a review or rehearing

in the trial court with the participation of Arkan-

sas counsel or to offer evidence that had not been

offered at the trial or to present any legal argu-

ments that might have, but had not, been made.

We find no prejudice to appellants by the exclu-

sion of their Arkansas attorney on the possibility

that he might be called as a witness by appellees.”’

[Appedix A at 4a, 5a]

In the ease at bar, unlike the Powell-Chandler-Hol-

loway line of decisions, the petitioners were represented

in the court below by able counsel of their own choice.

There was no absolute denial of the right to counsel as

in Goldberg v. Kelly, 397 U.S. 254 (1970) which was

5

the only additional pronouncement of significance in

a civil case cited by the petitioners.

Since the issue of the denial of the right to counsel

in a civil proceeding is factually absent in the case at

bar, the writ should be denied.

2. The Decision of the Arkansas Supreme Court Does Not

Conflict With the Decisions of This Court in Criminal Cases.

The petitioners assert that the denial of the right to

retained counsel clearly falls within this court’s hold-

ing in Chapman v. California, 386 U.S. 18 (1976), that

‘‘there are some constitutional rights so basic to a fair

trial that their infraction can never be treated as harm-

less error.’’ As such, the petitioners assert that the

‘“‘harmless error’’ approach utilized by the court below

has no precedential support.

Chapman dealt with the constitutionality of prose-

cutorial comment on the failure of an accused to testify

in a criminal ease. In rejecting the proposition that all

federal constitutional errors must always be deemed

harmful, this court simply reaffirmed the principle

that before a federal constitutional error can be held

harmless, the court must be able to declare a belief that

it was harmless beyond a reasonable doubt. Fahy v.

Connecticut, 375 U.S. 85 (1963) was the basis for this

court’s holding in Chapman. In Fahy, this court said:

‘‘The question is whether there is any reasonable

possibility that the evidence complained of might

have contributed to the conviction. To decide this

question, it is necessary to review the facts of the

ease and the evidence adduced at trial.’’ (375 U.S.

87)

6

Applying the standard announced in Chapman, the

Arkansas Supreme Court properly ruled that the trial

court’s error in excluding the petitioners’ Arkansas

counsel from the courtroom was not prejudicial and,

therefore, the harmless error rule applied. Justice

Fogleman, in the majority opinion, commenting on

the sole defense of usury, said:

‘When we consider the note in question in light of

the circumstances under which it was executed,

and the evidence in the light most favorable to ap-

pellants, appellants’ burden was insurmountable

and only one result can be reached, i.e., the one

reached at the trial court.” [Appendix A at 8a

(Imphasis Added) ]

On the issue of the trial court’s exclusion of peti-

tioners’ Arkansas counsel from the courtroom and the

refusal to grant a continuance, Justice Fogleman, for

the majority, noted:

‘‘Where the decision and judgment is correct on

the undisputed evidence, the appellant is in no po-

sition to complain. Yutterman v. Grier, 112 Ark.

366, 166 S.W. 749. Since, as we view the matter,

the procedural error, granted that there was an

abuse of diseretion in the matter, did not and could

not have affected the correct result reached by the

trial court, there is no prejudice, and consequently,

no reversible error.’’ [Appendix A at 6a (Empha-

sis Added) ]

The opinion below is not in conflict with standards

established by this court in criminal litigation. Since

the errors in the trial court did not and could not have

changed the ultimate result, the writ should be denied.

7

3. The Decision Below Does Not Conflict With Decisions

of Other State and Federal Courts.

The petitioners assert that subsequent to this court’s

decision in Powell every lower court which has spoken

to the issue concludes that the right to counsel ad-

dressed in that opinion, applies equally to civil cases.

The cases cited by the petitioners involve an abso-

lute denial of the right to counsel. Steen v. Board of

Civil Service Commissioners, 160 P. 2d 816, 26 Cal,

24 716 (1945); Mendoza v. Small Claims Court, 49 Cal.

2d 668, 821 P. 2d 9 (1958); Simon v. Liberman, 193

Neb. 321, 226 N.W.2d 781 (1975). The only exception

is Roberts v. Anderson, 66 F. 2d 874 (10 Cir. 1933),

where an Oklahoma Probate Court denied a party’s

right to be heard through counsel of her selection, ex-

cept by permission of and in subordination to, counsel

she did not select and who constantly opposed her own

counsel, In Roberts, the court decided that the Okla-

homa Probate Court judgment determining heirship

was not entitled to full faith and credit in a federal

court suit to quiet title.

The case at bar is factually distinct from the cases

cited by the petitioners. As we have said, here, the

petitioners were ably represented during the trial be-

low by T. H. Freeland, ITI, one of their attorneys of

choice, and, on appeal, by Mr. Freeland and their Ar-

kansas counsel as well.

Since there was no denial of the right to counsel in

the case at bar, there is no conflict with the decisions

from other jurisdictions cited by the petitioners and

the writ should be denied.

8

CONCLUSION

The Arkansas Supreme Court properly held that the

exclusion of the petitioners’ Arkansas counsel from

the courtroom was not prejudicial and, therefore, the

harmless error rule applied. As Justice Fogleman,

writing for the majority, said:

‘Since, as we view the matter, the procedural

error, granted that there was an abuse of disecre-

tion in the matter, did not and could not have af-

fected the correct result reached by the trial court

there is no prejudice, and consequently, no re-

versible error.’’ [Appendix A at 6a (Emphasis

Added) |

That the petitioners have not been prejudiced by the

exclusion of their Arkansas counsel from the court-

room is most pointantly demonstrated by their failure,

even at this late date, to point out any evidence or legal

arguments which were available but not presented by

their Mississippi counsel,

Respondents respectfully submit that the petition

for the writ of certiorari should be denied.

Respectfully submitted,

Robert C, COMPTON

423 North Washington

K] Dorado, AR 71730

Counsel for Respondents

August 16, 1978