Opposition — Girard v. Schweitzer

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-1046

JOHN J. GIRARD, et al.,

Petitioners,

.

GORDON D. SCHWEIT.ER, Sheriff of the City of St. Louis,

Successor to Benjamin Goins,

Respondeni.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

JOHN P. EMDE

Special Prosecutor

611 Olive Street, Suite 1950

St. Louis, Missouri 63101

(314) 621-5070

Attorney for Respondent

Of Counsel

FRED LEICHT, JR.

611 Olive Street, Suite 1950

St. Louis, Missouri 63101

(314) 621-5070

ST A A Vl

St. Louls Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

Page

EE bos ca nsccasceeedrcccrecece 1

ela cess ccetuseceeses 5

Reasons for Not Granting the Writ ................, 6

eee eee eee eee eee eneeees 8

Table of Authorities

Cases |

Butts v. Wainwright, 575 F. 2d 576 (Sth Cir. 1978) .... = 7

Mapp v. Warden, New State Correctional Institution for

Women, 531 F. 2d 1167 (2nd Cir. 1976) ......... 7

Rose v. Hodges, 423 U.S. 19 (1975) ........0.000e. 7

State ex rel. Girard, et al. v. Percich, 557 S.W. 2d 25

MC tsa shave cies oer iceseeceeeee 2

Taylor v. Hayes, 418 U.S. 488 (1974) .............. 5,7

White v. Wyrick, 530 F. 2d 818 (8th Cir. 1976) ...... 7

Statutes

ns CI Ec bubs eee sscresesseuces 6,7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-1046

JOHN J. GIRARD, et al.,

Petitioners,

Vv

GORDON D. SCHWEITZER, Sheriff of the City of St. Louis,

Successor to Benjamin Goins,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

STATEMENT OF THE CASE

The statement of the case contained in the petition for a

Writ of Certiorari does not include all that is material to the

than supplement each and every omission in the petitioners’

sideration of the question presented, respondent shall set forth

his own concise statement of the case.

consideration of the question presented in this cause. Rather

statement of the case, and in an effort to present this Court with

a clear and accurate statement of all that is material to the con-

oe en

The history of this case indicates that petitioners, all members

or officers of Brewery Drivers and Helpers Local Union No. 133

of St. Louis, affiliated with the International Brotherhood of

Teamsters, etc., were found guilty of criminal contempt of

Court by the Circuit Court of the City of St. Louis, State of

Missouri, on June 24, 1976. The convictions were fully re-

viewed by the Missouri Court of Appeals, St. Louis District, by

means of Preliminary Writs of Habeas Corpus and the con-

victions affirmed by opinion of that Court filed on August 30,

1977, found reported as State ex rel. Girard, et al., Petitioners,

v. Raymond T. Percich, Sheriff of the City of St. Louis, Respond-

ent, 557 S.W. 2d 25 (Mo. App. 1977).

Petitioners thereafter sought habeas corpus from the Supreme

Court of Missouri. That Court on October 12, 1977, issued

orders staying issuance of the mandate of the Missouri Court of

Appeals by which the convictions had been affirmed, and con-

sidered petitioners’ applications on written briefs in support and

Opposition thereto. On December 19, 1977, the Missouri Su-

preme Court denied each of petitioners’ Applications for Habeas

Corpus.

Petitioners then sought habeas corpus in the United States

District Court for the Eastern District of Missouri. On January

11, 1978, the Honorable James H. Meredith, Chief Judge, en-

tered a Memorandum Opinion and Order Girard v. Goins, 442

F. Supp. 1250 (E.D. Mo. 1978) by which that Court also de-

nied habeas corpus and, in effect, affirmed the convictions.

On appeal to the United States Court of Appeals for the

Eighth Circuit, that Court heid that ilic punishment of between

10 and 40 days imprisonment did not render the convictions

“serious” so as to require trial by jury. However, that Court

held that fines in excess of $500 could not properly be imposed

in the circumstances of the case absent the opportunity of a

trial by jury. The Federal Appeals Court remanded the case

dis: aa

to the District Court for entry of an appropriate order (A. 43).

On June 26, 1978, the District Court entered an Order pursuant

to the mandate and judgment of the Eighth Circuit directing

that habeas corpus should issue as to the petitioners unless, within

90 days of said order, the Circuit Court of the City of St. Louis

either reduced the fines against the petitioners to an amount not

exceeding $500 or grant to petitioners a new trial with a jury.

The Order of the District Court further directed petitioners to

appear before the Circuit Court of the City of St. Louis for

proceedings consistent with the mandate and judgment of the

Eighth Circuit (A. 28).

On July 18, 1978, the Circuit Court of the City of St. Louis

entered an order granting a remission of the fines theretofore as-

sessed, thereby limiting the fine against each petitioner to $500.

On the same day, petitioners filed new Applications for

Habeas Corpus with the Missouri Court of Appeals, St. Louis

District, alleging that the Circuit Court of the City of St. Louis

was without authority to reduce the fines originally assessed on

June 24, 1976 in order to comply with the orders obtained

by petitioners in the Federal Courts. Petitioners claimed that the

State Court had lost all jurisdiction over the case because more

than 31 days had passed since entry of the original judgment.

The Missouri Court of Appeals denied petitioners’ Applications

(A. 30).

Writs were then sought by each petitioner from the Supreme

Court of Missouri in applications based upon the same grounds

as had been raised in the Missouri Court of Appeals. After

receipt of briefs in support and opposition to the applications,

the Missouri Supreme Court also denied habeas corpus (A. 31).

Petitioners then filed an Amended Motion to Stay and

Amended Application for Issuance of Writs of Habeas Corpus

with the District Court of the United States for the Eastern

District of Missouri, again alleging that the Circuit Court of

a

the City of St. Louis had no authority to comply with the man-

date of the Eighth Circuit Court of Appeals and the Order of

the District Court of the United States with regard to the re-

duction of the fines assessed against petitioners. On September

25, 1978, the District Court denied the Petitions for Habeas

Corpus and further denied petitioners’ request for certificates of

probable cause (A. 32-36).

On September 25, 1978, petitioners filed a Notice of Appeal

to the Eighth Circuit from the Order of the District Court deny-

ing habeas corpus and further filed a Motion to Stay execution

of the sentences (A. 37, 38). On September 29, 1978, the

Eighth Circuit entered its judgment denying petitioners’ applica-

tion for a certificate of probable cause and further denying peti-

tioners’ Motion for Stay (A. 39).

On October 2, 1978, petitioners filed with the Honorable Mr.

Justice Blackmun an Application for Stay of Confinement as to

the sentences imposed, which Application was denied by Order

entered on October 3, 1978.

On November 3, 1978, all petitioners herein completed serv-

ice of the sentences respectively imposed upon them (A. 3).

The Order of the Eighth Circuit Court of Appeals giving

rise to this Petition for Certiorari is a denial by that Court of

Petitioners’ request for a certificate of probable cause to permit

an appeal of the District Court’s Order of June 2*, 1978 (A.

39-40). The District Court’s Order (A. 32-36) clearly sets

forth the basis for that Court’s rulings on petitioners’ arguments

and recites the matters before the Court giving rise to this pro-

ceeding.

This matter has been reviewed by the Missouri Court of

Appeals, St. Louis District twice, by the Missouri Supreme

Court twice, by the U. S. District Court twice, by the Eighth

Circuit twice (all exclusive of rehearing motions, etc.), and also

has been before the Circuit Justice on Motion to Stay.

—

QUESTION PRESENTED

Are the Orders of the Circuit Court of the City of St. Louis

in response to the mandate and judgment of the United States

Court of Appeals for the Eighth Circuit and the Order of the

United States District Court for the Eastern District of Missouri,

in conformity with the legal principle determined by this Court

in Taylor v. Hayes, 418 U.S. 488 (1974)?

REASONS FOR NOT GRANTING THE WRIT

Even a casual reading indicates that the present Petition for

a Writ of Certiorari sets forth no basis whatsoever for review

of this case by our nation’s highest Court. Respondent recog-

nizes that a response to the present Petition may do no more

than dignify arguments which are already patently spurious.

Respondent has filed this brief out of an abundance of caution

and in an effort chiefly to state reasons for denial of the writ

in order to disperse the smokescreen which petitioners have

created.

The first question petitioners claim is presented in this cause

(as indicated by their “Questions Presented”) is based upon the

premise that the Circuit Court of the City of St. Louis lost all

jurisdiction over the contempt proceedings thirty days after

entry of the Order finding petitioners guilty. Petitioners, how-

ever, completely omit any discussion of this “question” in their

“Reasons for Granting the Writ,” and thus have apparently

abandoned this so-called basis for relief.

Even though petitioners have abandoned this “question pre-

sented,” respondent sets forth hereafter but a few of the many

arguments and authorities which clearly and without question

refute petitioners’ position. ;

The present Petition for a Writ of Certiorari is derived from

Applications for Writs of Habeas Corpus filed by petitioners

in the United States District Court pursuant to Title 28 U. S.

Code §2254. (Petitioners did not bother to include the Peti-

tions in the Appendix.) Habeas corpus in the Federal Court

is available to State Court prisoners only on the ground that

petitioners were in custody in violation of the Constitution or

laws or treaties of the United States. The question of the me-

chanics of the State Court reducing the fines assessed against

petitioners in this case so as to comply with the Federal Court's

orders obtained by petitioners is a question, not of Constitu-

ay. Sma

tional or federal law, but only of Missouri state law. Further-

more, this identical argument was rejected by both the Mis-

souri Court of Appeals and the Missouri Supreme Court. It

is not the province of a federal habeas court to re-examine

questions of state law. Rose v. Hodges, 423 U. S. 19 (1975).

Any federal question of the power and jurisdiction of the

Circuit Court of the City of St. Louis to affect a reduction of

the fines assessed against petitioners was put to rest by this

Court in the case of Taylor v. Hayes, 418 U.S. 488 (1974).

The second question petitioners claim is presented to this

Court—and the only question argued by petitioners—is equally

lacking in merit. Stripped of all erroneous and misleading

references to any “evidentiary hearing,” the question petitioners

are actually seeking to raise is the question of the sufficiency

of the evidence before the State Court to sustain the State

Court conviction. Nowhere have petitioners ever indicated to

the District Court, to the Eighth Circuit, nor to this Court, the

factual issue for determination before the habeas Court which

required an evidentiary hearing. Rather, petitioners have com-

plained of the evidence in the Trial Court. Certainly, a ques-

tion of the sufficiency of the evidence does not present a “spe-

cial and important reason” that would warrant review by the

United States Supreme Court. Moreover, it is established with-

out exception that federal habeas corpus relief under Title 28

U. S. Code §2254 is not available to determine whether there

was sufficient evidence to sustain a State Court conviction.

Butts v. Wainwright, 575 F. 2d 576 (Sth Cir. 1978); Mapp

v. Warden, New York State Correctional Institution for Women,

531 F. 2d 1167 (2nd Cir. 1976); White v. Wyrick, 530 F. 2d

818 (8th Cir. 1976).

Petitioners do not in any wise demonstrate that the instant

Petition presents to the Court a case in which certiorari should

be granted for any of the reasons which are either specifically

set forth, or implicit in the provisions of Rule 19 of this Court.

CONCLUSION

The Petition for a Writ of Certiorari is totally void of any

basis for bringing before this Court for review the Order of

the Court of Appeals denying petitioners’ Application for a

certificate of probable cause to permit an appeal. Therefore,

it is respectfully submitted that the Petition for a Writ of Cer-

tiorari should be denied.

Respectfully submitted,

JOHN P. EMDE

Special Prosecutor

FRED LEICHT, JR.

611 Olive Street, Suite 1950

St. Louis, Missouri 63101

(314) 621-5070

Attorney for Respondent

Certificate of Service

I hereby certify that on this 24th day of January, 1979 three

copies of the Brief in Opposition to Petition for a Writ of

Certiorari were personally delivered to Jerome J. Duff, Esq.,

1139 Olive Street, Suite 302, St. Louis, Missouri 63101, Coun-

sel for Petitioners. I further certify that all parties required to

be served have been served.

JOHN P. EMDE

Special Prosecutor

FRED LEICHT, JR.

611 Olive Street, Suite 1950

St. Lovis, Missouri 63101

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