Respondents Reply Brief — Parratt v. Taylor

: FO ; ; .

R ARGU). yp

RECEIVED

IN THE

SUPREME COURT OF THE UNITED STATES JAN 2 - 198}

: OFF

No. 79-1734

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

RESPONDENT'S REPLY TO PETITIONERS'

OPPOSITION TO MOTION TO DISMISS

THE WRIT OF CERTIORARI

KEVIN COLLERAN

CLINE, WILLIAMS, WRIGHT,

JOHNSON & OLDFATHER

1900 First National Bank Bldg.

Lincoln, Nebraska 68508

Attorney for Respondent

TABLE OF CONT*

Page

INTRODUCTION... 0... ec eee eee e eee rere ener eernceee 1

ARGUMENT :

a THIS CASE SHOULD BE DISMISSED BECAUSE

THIS CASE IS MOOT, SINCE THERE IS NO

CASE OR CONTROVERSY PRESENTED BY IT.... 1

Il. THIS CASE SHOULD BE DISMISSED BECAUSE

THIS CASE IS MOOT, AND IT DOES NOv FALL

WITHIN THE "CAPABLE OF REPETITION, YET

EVADING REVIEW" EXCEPTION..........---- 5

Ill. THIS CASE SHOULD BE DISMISSED BECAUSE

THIS CASE IS MOOT, AND IT DOES NOT FALL

WITHIN THE "CLASS ACTION" EXCEPTION.... 7

IV. THIS CASE SHOULD NOT BE DECIDED ON THE

MERITS BY THIS COURT SIMPLY BECAUSE THERE

IS A NEED TO RESOLVE SIGNIFICANT QUESTIONS,

BECAUSE SUCH A DECISION WOULD VIOLATE ARTICLE

III OF THE UNITED STATES CONSTITUTION. . 8

CONCLUSION ....... cece cece ccc secccececcceceses 9

TABLE OF CASES

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,

veh. Gam. 300 U.B. GOT CASST) .- cccccceccsese

r~

Board of School Comm'r. v. Jacobs, 420 U.S.

BAD CRUG oo ce cecwccccoccivccecccccccsoccecce 7

County of L.A. v. Davis, U.S. ‘.

BD S.Ct. 1S7D CI9TS) .. wccccccccceccccecccces 2

DeFunis v. Odegaard, 416 U.S. 312 (1974)......... 1,2,3,6,7

Heitmuller v. Stokes, 256 U.S. 359 (1921)........ 3

In Re Summers, 325 U.S. 561 (1954).............-- 9

J. Aron & Co. v. Mississippi Shipping Co.,

nh Tn, ee Can seckbeeeeseseeecuseewes 4,5

Pasadena City Bd. of Education v. Spangler,

a... Ce CE. cdubcadeenéeagees seanees 8

Richardson v. Ramirez, 418 U.S. 24 (1974)........ 8

Bee. we. Dele. Bee BB Bee Geese i ste ccacconcesitcs 2,7

Soe o Ban. GES Oe... Bee Gee < vc nccncectcess 3,5,7,9

Southern Pacific Terminal Co. v. Interstate

Commerce Commission, 219 U.S. 498 (1911).... 5

Svbron v. New York, 392 U.S. 401, 50 n. 8 (1965). 9

Troy State U. v. Dickey, 402 F.2d 515 (5th Cir. 1968) 4

Verret v. Oil Transport Co., Inc., 365 U.S.

Pe REE awn cet ces cebeaceunseseeessecs see 4

Weinstein v. Bradford, 423 U.S. 147 (1975)....... 5,9

TABLE OF OTHER CITATIONS

Federal Rule of Civil Procedure 23, Class Actions 7,8

Petitioners’ Brief, Parratt and Lugenbill v. Taylor,

United States Supreme Court, No. 79-1734.... 5,8

INTRODUCTID"!

On October 20, 1980, this Court granted a Writ of

Certiorari. At the time the Writ was granted the contro-

versy existing between the parties was for $23.50. This

amount, the respondent alleged, was owed to him by the

petitioners because their negligence caused him to lose

property valued at that amount while he was incarcerated at

the Nebraska Penal and Correctional Complex.

After the granting of the Writ, respondent accepted an

offer from a third party (a religious organization) for

payment of the entire amount in controversy. Respondent has

signed an affidavit acknowledging such payment. He has also

issued a release in favor of the petitioners for any and all

claims or causes of action he might have arising out of the

stolen or lost property. One of the primary reasons that

the respondent accepted payment is that, because he has

moved to the State of Washington and because of the commu-

nication problems that entails, he has lost interest in the

prosecution of the suit.

ARGUMENT

THIS CASE SHOULD BE DISMISSED BECAUSE

THIS CASE IS MOOT, SINCE THERE IS NO

CASE OR CONTROVERSY PRESENTED BY IT.

Article III, Section 2, Clause 1, of the United States

Constitution establishes as a prerequisite to Federal jur-

isdiction in a litigated case, the existence of a "case or

controversy." Id. This Court has interpreted this to mean

that "federal Courts are without power to decide questions

that cannot affect the rights of litigants in the case be-

fore them." DeFunis v. Odegaard, 416 U.S. 312, 316 (1974),

(quoting North Carolina vw. Rice, 404 U.S. 244, 246 (1971)).

More specifically, in Aetna Life Ins. Co. v. Haworth, 300

U.S. 227, reh. den. 300 U.S. 687 (1937), che Court stated

that a case to be susceptible to Federal jurisdiction:

. must be definite and concrete, touching

the legal relations of the parties having ad-

verse legal interests ... . It must be a

Ty

real and substantial controversy admitting of

specific relief through a decree of a conclu- -

sive character, as distinguished from an

opinion advising what’ the law would: be upon a

hypothetical state of facts. » '

Id. at 240-241.

It is from this requirement that the doctrine of moot-

ness is derived. "[A] case is moot when the issues pre-

sented are no longer ‘live' or the parties lack a legally

cognizable interest in the outcome."' County of L.A. v.

Davis, U.S. , 99 S.Ct. 1379, 1383 (1979),

(quoting Powell v. McCormack, 395 U.S. 489, 496 (1969)).

Mootness can occur because "interim relief or events have

completely and irrevocably eradicated the effects of the

alleged violation." Id. at _____, 99 S.Ct. at 1379 (em-

phasis added). “The usual rule in federal cases is .

that an actual controversy must exist at stages of appeilate

or certiorari review, and not simply at the date the action

is initiated." Roe v. Wade, 410 U.S. 113, 125 (1973).

The facts presented in DeFunis v. Odegaard, 416 U.S.

312 (1974), offer an illustration of interim relief or

events causing a case to become moot. The appellant DeFunis

was denied admission to the law school of the University of

Washington. He brought suit ina Washington trial court

alleging that the procedures and criteria employed by the

law school discriminated against him on account of his race,

in violation of the Equal Protection clause of the Four-

teenth Amendment to the United States Constitution. Id. at

314. He sought a mandatory injunction commanding the Uni-

versity to admit him as a member of the first-year class.

Id. The trial court found in his favor and he was admitted

to law school on order of the court. Id. at 314-15. The

Washington Supreme Court reversed the trial court, and Writ

of Certiorari was granted by the United States Supreme

Court. Id. At the time of oral argument DeFunis was in his

last semester of law school. Id. at 315. The University

indicated that it would allow DeFunis to complete law school,

even if the Supreme Court affirmed the decision of the

a

Washington Supreme Court. Id. at 316.. the United, States

Supreme Court thus held that the case “was moot, since "{al

determination by this court of the legal’ issues tendered by

the parties is no longer necessary to compel that result

[the completion of law school} and it could not serve to

prevent it " Id. at 317.

Another example is Sosna v. Iowa, 419 U. Ss, 393 (1975).

In Sosna, the appellant challenged the constitutionality of

Iowa's one year residency requirement for divorce. Id. at

395-96. At the time of oral argument before the Supreme

Court, the appellant had satisfied the one year residency

requirement, and had obtained a divorce outside of Iowa.

Id. at 399. The Court in dicta stated that had appellant

sued on her own behalf, the case would be moot and require

dismissal. The Court was able to hear the case, however,

because the case had been filed as a certified class action,

Id. at 397, and although the action was moot as far as the

class representative was concerned, it was not moot as far

as the class itself was concerned. Id. at 399.

In this case the intervening facts that have caused it

to become moot are that the amount in controversy has been

paid in full to the respondent by a third party and the

respondent has executed a release for any and claims and

causes of action he might have arising out of the situation

which is the basis of his original claim. Similar to the

situation presented in DeFunis, a determination by this

Court is no longer necessary to compel the payment of the

amount in controversy, or to prevent it. The controversy is

no longer "live." The parties lack "a legally cognizable

interest in the outcome."

That the intervening events Or facts that make a con-

troversy moot can be brought by the plaintiff has long been

accepted by the United States Supreme Court. Heitmuller v.

Stokes, 256 U.S. 359 (1921). In Heitmuller, the plaintiff

originally brought suit in the Supreme Court of the Dis-

trict of Columbia to recover from the defendant possession

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of land located in Washington. The Washington Supreme Court

found in favor of the plaintiff. The decision was affirmed

by the Court of Appeals for the District “of Columbia. Id.

at 360. The United States Supreme Court granted a writ of

error. Id. However, before the case could be heard, the

plaintiff sold his entire interest in the property. The

Court held that this made the issue moot, for the plaintiff

had "no further interest in the case... except to recover

costs and rental due because of the wrongful detention of

the property." Id. at 361.

Another case illustrative of the point that subsequent

actions of a plaintiff may make an action moot is the Fifth

Circuit case, Troy State U. v. Dickey, 402 F.2d 515 (5th

Cir. 1968). Dickey, a former student newspaper editor, sued

Troy State University when the University denied him read-

mission after he had been expelled for refusing to follow a

faculty advisor's instructions to publish a certain edi-

torial, but instead published his own article. Id. at 516.

Dickey challenged the action of the University on the ground

that the denial of his readmittance violated his First

Amendment right of free speech. Id. After the Writ of

Certiorari was granted, Dickey filed an affidavit with the

Court stating that he did not plan to re-enter the Univer-

sity to complete his undergraduate degree. Id. Despite

both parties urging to decide the case on the merits, "not-

withstanding that the only relief sought by Dickey was to

require the University Trustees to re-enroll him at Troy

State, relief which he now does not seek," the Court held .

that the issue was moot, and remanded it for dismissal. Id.

The Court stated that the case was moot for "there is no

longer a subject matter upon which the judgment of this

court can operate." Id.

Another somewhat analogous situation in which this

Court has recognized that actions taken by a plaintiff

subsequent to the granting of Writ of Certiorari may make a

case moot, are the settlement cases. In Verret v. Oil

Transport Co., Inc., 365 U.S. 768 (1960), and J. Aron & Co.

ioillices

j. Mississippi Shipping Co., 261 U.S. 115 1959), this Court

held that consent judgment entered by the lower Court sub-

sequent to the filing and granting of the. petition for Writ.

of Certiorari makes a case moot.

Il.

THIS CASE SHOULD BE DISMISSED BECAUSE THIS

CASE IS MOOT, AND IT DOES NOT FALL WITHIN

THE "CAPABLE OF REPETITION, YET EVADING RE-

VIEW" EXCEPTION.

As the petitioners have noted in their brief, this

Court in Southern Pacific Terminal Co. V. Interstate Com-

merce Commission, 219 U.S. 498 (1911), for the first time

recognized an exception to the mootness doctrine. This

Court held that a case, although moot, may be entitled to

review on the merits if the issue presented by the case is

“capable of repetition, yet evading review." Id. at 515,

Petitioner's brief at 3. In Sosna v. Ilowa, 419 U.S. 393

(1975), the Supreme Court, in the absence of a class action,

limited the "capable of repetition, yet evading review"

exception to situations in which the following two elements

were present:

Re The challenged action was in its duration

too short to be fully litigated prior to

its cessation or expiration; and

2. There was a reasonable expectation that

the same complaining party would be sub-

jected to the same action again.

Weinstein v. Bradford, 423 U.S. 147, 149 (1975), (citing

Sosna v. Iowa, 419 U.S. 393 (1975).

Application of these limitations is illustrated in

Weinstein v. Bradford, 423 U.S. 147 (1975). The facts of

that case were that the plaintiff, Bradford, sued members of

the North Carolina Parole Board, alleging that he was en-

titled under the Fourteenth Amendment of the Constitution to

certain procedural rights when his eligibility for parole

was considered, and that he had been denied these rights.

Id. at 147. The Court held that the casc was moot when it

found that after its grant of writ, but prior to its handing

down its decision, Bradford had been completely released

from supervision, and thus "from that date forward it is

oBe

= - suse td

Re

slain that respondent can have no int« “¢s" shatever in the

procedures followed by petitioners in granting parole." Id.

at 148. The Court rejected the petitioners’ (the Board's)

argument that the case was not moot because the issue pre~

sented by it "is capable of repetition, yet evading review."

The Court's rejection was based on its finding that there

was no reasonable expectation that the respondent would be

subjected to the same action again. The Court stated that:

“While petitioners will continue to administer the North

Carolina Parole System with respect to those who at any

given moment are subject to their jurisdiction, there is no

demonstrated probability that respondent will again be among

that number." Id. at 149.

Another jllustration is presented in DeFunis v. Ode-

gaard, 416 U.S. 312 (1974). In that case, the Court held

that a question "capable of repetition, yet evading review"

was not presented by the facts of the case. This holding

was based on the Court's finding that DeFunis "will never

again be required to run the gauntlet of the Law Schools'

admissions process, and so the question is certainly not

‘capable of repetition’ so far as he is concerned." Id. at

319 (emphasis added). Additionally, the Court stated "just

because this particular case did not reach the Court until

the eve of the petitioner's graduation from law school, it

hardly follows that the issue he raises will in the future

evade ‘review. If the admissions procedures of the law

school remain unchanged, there is no reason to suppose that

a subsequent case attacking those procedures will not come

with relative speed to this Court... ." id.

In applying the two-pronged limitation to the facts

presented in this case, it is apparent that the "capable of

repetition, yet evading review" doctrine is inapplicable.

Respondent is no longer residing in the State of Nebraska.

He has moved to the State of Washington. This is one of the

reasons he was interested in accepting tie payment of the

amount in controversy and terminating the issue. Since he

= =

ro longer resides in Nebraska it is not demonstrable that

respondent will be subjected to the same action again.

Additionally, as in DeFunis, although there is no

reason to suppose that respondent will be subject to the

same action again, this does not mean that in the future the

issues he raised will evade the Court. The petitioners

themselves indicate in their brief that "(ijncluding this

case, writs of certiorari have been granted on the negli-

gence issue raised by this case three times in the last

three years." Id. at 3.

Ill.

THIS CASE SHOULD BE DISMISSED BECAUSE THIS

CASE IS MOOT, AND IT DOES NOT FALL WITHIN

THE "CLASS ACTION" EXCEPTION.

The petitioners argue that the action brought in this

case is a constructive class action, and although the case

may be moot to the representative of the class, it is not

moot to the class as 4 whole, and thus the Court may exer-

cise jurisdiction and decide the case on its merits. Sosna

v. Iowa, 419 U.S. 393 (1974); Roe v. Wade, 410 U.S. 113

(1973); Petitioner's Brief at 4. This reasoning, however,

completely ignores Federal Rule of Civil Procedure 23,

Class Actions. This case was never duly certified as a

class action pursuant to that rule. The necessity that Rule

23 be followed in order to avoid the doctrine of mootness

because a class action is involved is illustrated in this

Court's decision of Board of School Comm'r. v. Jacobs, 420

U.S. 128 (1975).

In that case, the original action was brought in Fed-

eral District Court by six named plaintiffs seeking to have

declared unconstitutional regulations and rules promulgated

by the Commissioners, and to the enforcement of those regu-

lations and rules enjoined. Id. at 128. At the time the

action was brought, all six plaintiffs were high school

students attending schools managed by the Board of School

Commissioners. Id. at 129. By the time certiorari was

granted, and oral argument was heard, al. six plaintiffs had

graduated from the school system. Id. ‘The Court stated

-7-

a aT a a a

_ that the case would not be moot if it was duly certified as

a class action pursuant to Federal Rule of Civil Procedure

23, and (1) "a controversy still exists between petitioners

and the present members of the class," Id., and (2) "the

issue in controversy is such that it is capable of repeti-

tion yet evading review." Id.

The Court held that the case was moot because the par-

ties had inadequately complied with Rule 23(c); "no other

effort was made to identify the class or to certify the

class action." Id. The Court stated, that "(t]he need for

definition of the class purported to be represented by the

named plaintiffs is especially important in cases like this

one where the litigation is likely to become moot as the

initially named plaintiffs prior to the exhaustion of ap-

pellate review." Id. at 30.

Similarly, in Pasadena City Bd. of Education v.

Spangler, 427 U.S. 424 (1976), the Court held that in a

school segregation case in the United States Supreme Court,

where all the plaintiffs have graduated from the School

System, the case becomes moot where there has been no cer-

tification of any class action under Rule 23, Id. at 430.

This holding was made although the suit was filed as a class

action and was treated as a class action by the parties

thereto, Id.

IV.

THIS CASE SHOULD NOT BE DECIDED ON THE

MERITS BY THIS COURT SIMPLY BECAUSE THERE

IS A NEED TO RESOLVE SIGNIFICANT QUESTIONS,

BECAUSE SUCH A DECISION WOULD VIOLATE AR-

TICLE III OF THE UNITED STATES CONSTITU-

TION.

An additional argument made by the petitioners in their

brief is that even if the issue is moot, the Court may in

its discretion decide the issue if there ure strong policy

reasons for it to do so. Petitioners’ Brief at 5. This

Court in Richardson v. Ramirez, 418 U.S. 24 (1974), however,

stated that "while the Supreme Court of California may

choose to adjudicate a controversy simply because of its

public importance, and the desirability of a state-wide

wBe

‘decision, we are limited by the cas®-or-controversy require e

ment of Article III to adjudication of actual disputes

between adverse parties." Id. et 36. The two recognized

exceptions to the mootness doctrine do not, by their oper~

ation, take the Court outside the Constitution, because a4

case and controversy continue to exist between the parties

involved. ;

The rationale behind the class action exception is that

although "the controversy is no longer live as to [the named

representative] it remains very much alive for the class of

persons [the representative] has been certified to repre~

sent." Sosna_v. lowa, 419 U.S. 393, 401. Similarly, the

rationale behind the other recognized exception to the

mootness doctrine, “capable of repetition, yet evading re-

view," is that there is a reasonable expectation that the

same complaining party would be subjected to the same action

again." Weinstein v. Brandford, 423 U.S. 147, 149 (1975).

If the Court is given discretion to decide cases which

are moot to all partidm involved, presently and in the

future, such as presented in this case, the Court would be

going outside the limitation mandated by the United States

Constitution. This Court has repeatedly stated that to con-

stitute a "case or controversy" there must be an actual

controversy over an issue, not a desire for an abstract

declaration of law.'"' In Re Summers, 325 U.S. 561 (1954);

Svbron v. New York, 392 U.S. 401, 50 n. 8 (1965).

CONCLUSION

For the reasons above, we urge this Court to grant

respondent's motion to dismiss this case as moot.

Respectfully submitted,

BY KEVIN COULERAN

CLINE, WILLIAMS, WRIGHT,

JOHNSON & OLDFATHER

1900 First National Bank Bldg.

Lincoln, Nebraska 68508

Member of the Bar of the

United States Supreme Court