Petitioners Reply Brief — Parratt v. Taylor

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

ROBERT PARRATT and

FRANCIS LUGENBILL,

Petitioners,

Vv.

BERT TAYLOR, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITIONERS' BRIEF IN OPPOSITION

TO MOTION TO DISMISS

PAUL L. DOUGLAS

Attorney General

J. KIRK BROWN

Assistant Attorney General

State of Nebraska

2115 State Capitol Building

Lincoln, Nebraska 68509

Tel. (402) 471-2682

Attorneys for Petitioners

RECEIVED

DEC 27 1980

Urrivc UF THE CLERK

SUPREME COURT, U.S.

TABLE OF CONTENTS

Page

Introduction------------------------------------ 1

Argument:

I. This case is not moot------------------ 1

II. A. Issues capable of repetition------- 1

B. Issues evading review-------------- 2

III. Constructive class action-~------------- 4

IV. Need to resolve significant questions-- S

V. Public policy considerations----------- 6

Conclusion-~------------------------------------- 7

TABLE OF CASES

Baker v. McCollan, 443 U.S. 137 (1979) ---------- 3

Dunn v. Blumstein, 405 U.S. 330 (1972) Sees ee eee 4

Gilligan v. Morgan, 413 U.S. 1 (1973)----------- 5

Nebraska Press Association v. Stuart,

427 U.S. 539 (1976) ------------------------ 2

Procunier v. Navarette, 434 U.S. 555 (1978)----- 3

Richardson v. Ramirez, 418 U.S. 24 (1974)------- 5

Roe v. Wade, 410 U.S. 113 (1973) --------------- 4

Sniadach v. Family Finance Corp, 395 U.S.

337 (1969) --------------------------------- 6

Sosna v. Iowa, 419 U.S. 393 (1974) -------------- 4

Southern Pacific Terminal Co. v. Interstate

Commerce Commission, 219 U.S. 498 (1911)--- 3

United States v. W. T. Grant Co., 345 U.S.

629 (1953) --------------------------------- 5

Weinstein v. Bradford, 423 U.S. 147 (1975)------ 2

TABLE OF STATUTES

42 U.S.C. §1983--------------------------------- a, 4, 3

TABLE OF OTHER CITATIONS

Annot. 44 L.Ed.2d 719 (1976) -------------------- 6

Note: Mootness in the Supreme Court, 88

Harv.L.Rev. 373 (1974) -----~-------------- 6

Brief of the State of New Jersey as Amicus

Curiae, Parratt and Lugenbill v. Taylor,

United Supreme Court, No. 79-1734---------- 3

INTRODUCTION

On October 20, 1980, this Court found this case worthy

of consideration and granted a Writ of Certiorari. The

petitioners' brief on the merits and six amicus briefs

representing the interests of 30 states and one private

organization were filed with this Court on or before December

4, 1980. Within a week of these filings the respondent filed

his motion to dismiss this case as moot.

The respondent alleges, and the petitioners have no

present means of verifying, that he has been paid a sum of

money equal to the amount of the judgment questioned in this

case. The money was allegedly paid by a person "not a party

to the action."! Petitioners can assure this Court the money

in question did not come from them, anyone acting with their

permission or on their behalf.

The petitioners continue in their desire to have the

issues raised by their petition for certiorari resolved by

this Court, and strongly urge that the respondent's motion

to dismiss be denied.

ARGUMENT

I.

THIS CASE IS NOT MOOT.

A.

The facts presented by the respondent do not effect the

relationship of the parties or the judgment now before this

Court. At best the respondent's allegations pray this Court

to provide them an opportunity to alter the stacus of this

case in the future.

lthe petitioners have been able to verify that the offer

to pay the sum in question was extended tc respondent's counsel

by attorney Robert M. Mark, an associate with the law firm of

Sonnenschein, Carlin, Nath and Rosenthal, Chicago, Illinois.

Mr. Mark and other representatives of that firm have refused

to discuss the details of the offer with petitioners’ counsel

but have provided conflicting information regarding whether

the sum in question comes from Mr. Mark, the firm or an unnamed

client of the firm.

The judgment challenged remains a potential source of

liability for the petitioners, and we question the respondent's

ability or authority to dismiss this matter once it has gone

on sudan: In essence, the respondent alleges that he is

now prepared to release the judgment against the petitioners.

This would amount to a satisfaction of the judgment in question

and would not effect its precedential value.

It is the law of this case, and not $23.50, which prompted

the Petition for Writ of Certiorari in this case. The fact that

the respondent has now found an unnamed benefactor to whom it

is worth at least $23.50 to see that the issues presented here

are not considered by this Court, should not obscure the fact

that nothing has materially changed in this case. The relation-

ship between the respondent and the petitioners is no different

today than it was when the Writ of Certiorari was granted. The

respondent is simply $23.50 richer.

The question of whether the respondent has any right under

42 U.S.C. §1983 to the judgment presently before this Court

remains significant and worthy of consideration and resolution

by this Court.

B.

We note the respondent cites no authority in support of

his argument that the facts he alleges moot this case. We

believe this lack of cited authority clearly reflects the lack

of that proposition's merit.

This situation does not fall within the normal concepts

of mootness which underlie this Court's Rule 53. No accord

or resolution has been reached between the parties to this

case, nor do the petitioners unilaterally desire this case

dismissed. No party to this action is now deceased.

This case does not represent a situation mooted by the

passage of time. E.g., Nebraska Press Assoc. v. Stuart, 427

U.S. 539 (1976); Weinstein v. Bradford, 423 U.S. 147 (1975).

It does represent a unique attempt by parties not before this

Court to remove a case from the docket.

It.

In Southern Pacific Terminal Co. v. Interstate Commerce

Commission, 219 U.S. 498 (1911), this Court first announced

the proposition that questions "capable of repetition, yet

evading review" should not be denied an opportunity for redress.

Assuming for the moment that the respondent's allegations do

present a question of mootness, we believe this case clearly

raises the same public policy considerations which led to the

result reached in the case above.

A.

ISSUES CAPABLE OF REPETITION

The issues in this case are Clearly capable of repetition.

Petitioner Parratt continues in his position as Warden of the

Nebraska State Penitentiary and inmate claims for property

lost or destroyed in that institution continue to arise. Not

only is petitioner Parratt's exposure to liability under the

reasoning of the judgment in this case capable of repetition

locally, but nationally these questions continue to arise with

regularity. Including this case, Writs of Certiorari have been

granted on the negligence issue raised by this case three times

in the last three years. Procunier v. Navarette, 434 U.S. 555

(1978); Baker v. McCollan, 443 U.S. 137 (1979). The issues

presented by this case are Clearly capable of repetition.

B.

ISSUES EVADING REVIEW

The issues presented by this case are also likely to evade

review. One of the issues presented by this case is that the

amount in controversy may be de minimus under the Fourteenth

Amendment. The emounts at issue in prisoner property loss

claims are generally small. See, Brief of the State of New

Jersey as Amicus Curiae, p. 5.

Yet if we assume this case is moot, as argued by the

respondent, it is moot solely due to the desire of a person

or persons unknown to render it so. Although the motivations

of these persons may be unarticulated, their goals are obvious.

They do not want this case considered ahd resolved by this

Court. If they are successful in their attempt to buy this

case off of this Court's docket, there will be nothing to

prevent similar actions in the future. Their expenses were

negligible. The same pressing issues could repeatedly be

removed from this Court's consideration and the matter will

thus effectively evade review.

Itt.

CONSTRUCTIVE CLASS ACTION

The petitioners are officials and employees of the State

of Nebraska's prison system. As such they are constantly

exposed to the possibility of being named as a defendant in

actions brought pursuant to 42 U.S.C. §1983. Yet as defendants

the petitioners have no means of resolving their respective

rights under 42 U.S.C. §1983, regardless of the similarity

of their situation to governmental defendants elsewhere,

except as individuals.

This Court now has before it the amicus curiae briefs of

30 states and one private entity, all representing interests

similar to those typified by the individual petitioners present

here. In effect, this Court now has before it a constructive

class of persons similarly situated who may practically join

together only in this forum to urge the vindication of their

mutually held rights and interests.

The proposition that this Court will continue to hold and

review classes raising issues Significant to a class regardless

of the changing status of individual members of that class is

well recognized. Sosna v. Iowa, 419 U.S. 393 (1974); Roe v.

Wade, 410 U.S. 113 (1973); Dunn v. Blumstein, 405 U.S. 330 (1972).

The same public policy considerations which led to the

decisions in the cases noted above strongly mitigate in favor

of the retention of this case upon the docket of this Court.

Nowhere but in this forum may issues of the Significance of

those presented by this case be effectively resolved. The

split of authority among the circuit courts noted in our Petition

for Writ of Certiorari as well as the interest expressed by the

amicus curiae before this Court cry out for a resolution of

these questions. All involved deserve an interpretation of

the rights and remedies afforded by 42 U.S.C. §1983 which may

be applied uniformly throughout this country.

Iv.

NEED TO RESOLVE SIGNIFICANT QUESTIONS

This Court has also recognized the need (if not the

necessity) of resolving pressing issues regardless of arguments

that a case may be moot. Whether a case is to be removed from

the docket of this Court as moot rests within the discretion

of this Court. In Gilligan v. Morgan, 413 U.S. 1 (1973), the

record clearly established that none of the party plaintiffs

or defendants had a current interest in the issues raised by

the case.

Some basis, therefore, exists for a conclusion

that the case is now moot; however, on the record

before us we are not prepared to resolve the case

on that basis and therefore turn to the important

question whether the claims alleged in the complaint.

are justiciable.

Id. 413 U.S. at 5. Before this Court the practical necessities

of resolving important questions should be given precedence

over technical concepts of mootness. Richardson Vv. Ramirez,

418 U.S. 24 (1974). A heavy burden is placed upon a party

seeking to moot a case before this Court to show that the

issues raised are not likely to recur or the case will be

retained to vindicate the “public interest in having the

legality of the practice settled." United States v. W. T.

Grant Co., 345 U.S. 629, 633 (1953).

42 U.S.C. §1983 is uniformly applicable to all who have

come forward seeking a resolution of these issues. This case

is confined to a sufficiently specific factual situation that

a decision here on the merits would effectively eliminate the

necessity for future repetitious litigation. 42 U.S.C. §1983

represents established legislation which is not currently subject

to experimentation, change or development by either the legisla-

tive or executive branches of government. All of these factors

lend weight to the conclusion that this case should be retained.

Note: Mootness in the Supreme Court, 88 Harv.L.Rev. 373 (1974);

Annot. 44 L.Ed.2d 719 (1976).

Vv.

PUBLIC POLICY CONSIDERATIONS

Finally, we believe the means employed by the respondent

and his clandestine supporters raise significant issues of

public policy in the administration of this Court's docket.

Those persons?

spearheading this attempt to remove this case

from the docket have expressed the opinion to petitioners’

counsel that this is not the kind of case this Court should

be deciding. They therefore have altruistically, albeit

anonymously, moved to assist in relieving this Court of that

burden.

This type of thinking completely ignores the fact that

this Court has already reviewed this case on the Petition for

Certiorari and deemed it worthy of the time and effort necessary

to review it on the merits. The respondent's allies apparently

view the decision of this Court to grant certiorari as erroneous

and have expressed to petitioners’ counsel their further belief

that daliverine a check for $23.50 plus interest to respondent's

counsel was the most fiscally expenditious means available to

correct that error. The presumptuousness of their thinking is

impressive, and if appropriate could have denied us such legally

significant rulings as that in Sniadach v. Family Finance Corp.,

395 U.S. 337 (1969), which involved a Similarly "insignificant"

sum.

This Court, the petitioners and the public should have a

right to know who is attempting to influence the workings of

this Court. If there are persons who believe that our Petition

for Certiorari was improvidently granted or that the petitioners

should not prevail on the merits they certainly are afforded

2See, footnote 1.

.

the opportunity to express those beliefs as amicus curiae

before this Court. In that posture both the strength of

their logic and the virtue of their motivations may be

evaluated and debated openly. To date, both the petitioners

and this Court have been denied the opportunity to make such

an evaluation.

Public confidence and professional respect for this

Court hinge to a great extent upon the fact that an opportunity

is afforded in this forum for a full airing of divergent view-

points as they might affect decisions which will always have

significance beyond the parties directly involved. To allow

the respondent to succeed on his motion to dismiss we believe

would depreciate these essential values.

The question is whether this Court or unnamed third

parties are to control the docket of this Court. The answer

we hope will lead to the conclusion the respondent's motion

should be denied.

CONCLUSION

For the reasons above we urge this Court to deny the

respondent's motion to dismiss and allow this case to proceed

to a resolution on its merits.

Respectfully submitted,

ROBERT PARRATT and FRANCIS

LUGENGILL, Petitioners,

By PAUL L. DOUGLAS

Attorney General

A stant Attorney General

2U45 State Capitol

Lincoln, Nebraska 68509

Tel. (402) 471-2682

Members of the Bar of the

United States Supreme Court

Attorneys for Petitioners

©

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT PARRATT and

FRANCIS LUGENBILL,

October Term, 1980

No. 79-1734

Petitioners,

CERTIFICATE OF

PERSONAL SERVICE

)

)

)

)

)

Vv. )

)

BERT TAYLOR, JR., )

)

Respondent. )

I hereby certify that three copies of the Petitioners’

Brief on the Merits have been served upon the respondent by

mailing said copies, first class postage prepaid, addressed

to the respondent's attorney, Mr. Kevin Colleran, 1900 First

f

National Bank Building, Lincoln, Nebraska 68509, on this 244

day of December, 1980.

PAUL L. DOUGLAS

Attorney General

Agsiistant Attorney General

21¥5 State Capitol

Lincoln, Nebraska 68509

Tel. (402) 471-2682

Members of the Bar of the

United States Supreme Court

Attorneys for the Petitioners