# Opposition — Boone v. J & M McKee

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1365%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 862

## Text

ee

Me 2 Oy".

Supt ein, Cor ET @ wa

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1365%3A2. Public record. Not legal advice.