Reply Brief — Johnson v. J. O. L.

No. 80-45

Supreme Court of the United States

October Term, 1980

EUGENE JOHNSON III,

Petitioner,

Vv.

J.O.L. il,

Respondent.

On A Writ of Certiorari to the

District of Columbia Court of Appeals

PETITIONER JOHNSON'S RESPONSE

TO THE RESPONDENT'S REPLY TO

. OPPOSITION TO MOTION TO DISMISS

THE WRIT OF CERTIORARI

Edward L. Genn

1319 - 18th Street, N.W.

Washington, D.C. 20036

Counsel for Petitioner

(202) 638-2027

November 17, 1980

Pet. Reh. Ex*2

TABLE OF CONTENTS

MESponee tO BaGiy ss 6 osc okk vce cc cea. 1-20

TABLE OF CASES

County of Los Angeles v. Davis,

440 U.S. 648, 99 S.Ct. 1379 (1979). 18

DeFunis v. Odegaard, 416 U.S. 312,

Fe Deen AIRS CARTE) isn obo 0c dv aevn’ 14

Doe, John and Jane Roe v. Delaware

TIPCIU OND RG RE kG6 se a HeRRAE A CECE CE, ce & |

Gannett Co., Inc. v. DePasquale,

443 U.S. 368, 99 S.ct. 2898 (1979) 15

Nebraska Press Assn. v. Stuart,

427 U.S. 539, 96 S.Ct. 2791 (1976) 15,16

Roe v. Wade, 410 U.S. 113, 125,

73 S.Ct, 703, 713 (1973).......%.. 14

Sosna v. Iowa, 419 U.S. 393, 93 8.Ct.

Oe CASTE ins hac Kee ee Skeets 15,16

United States v. Concentrated Phos-

SIhate Export Association, 393 U.S.

199, 203, 89 S.Ct. 361, 364 (1968). 14

Weinstein v. Bradford, 423 U.S. 147,

149 (1975)..... tPA E ON ER ORES OO 8 Wee £35, 46,17

Supreme Court of the United States

October Term, 1980

No. 80-45

EUGENE JOHNSON III,

Petitioner,

Vv.

J.O.L. II,

Respondent.

On A Writ of Certiorari to the

District of Columbia Court of Appeals

PETITIONER JOHNSON'S RESPONSE

TO THE RESPONDENT'S REPLY TO

OPPOSITION TO MOTION TO DISMISS

THE WRIT OF CERTIORARI

The Respondent J.O.L. II has filed a

last-minute Reply to Petitioner Johnson's

Opposition to his Motion to Dismiss. It

was delivered, in counsel's absence, during

the late afternoon just prior to the matter

being presented to this Court the next morn-

ing and at a time when it was impossible for

counsel to respond.

The Reply is largely an original Mo-

tion, for it supplies some Points and Au-

thorities whereas none were submitted with

the Motion so they could be responded to, and

it adds an alleged "stipulation" that was

never give before during the more than 42

months of litigation in this cause. It pro-

vides both less than 24 hours before it was

known that the matter was to be presented

to the Court, and at a time when Mr. Johnson

was without means to deal with it. Apart

from whether a Reply is appropriate, cer-

tainly the failure to put this material in

the original Motion so it could be addressed

in the normal Same given for an Opposition

deserves note and warrants its rejection.

Coming at this last minute, in a case where

the Briefs are to be filed on November 20,

within a few days, it is simply too late,

and unfairly so. Further, when the parties

were notified on October 6, 1980 that Mr.

Johnson's Petition for the Writ was granted,

they were informed that it would be set for

oral argument in the January session with

John Doe and Jane Roe v. Delaware, No. 79-

5932. At the same time, counsel were in-

formed there would be no continuances of the

Briefs or Joint Appendix. That aspect of

the case has proceeded. In this circum-

stance, the very last minute filing of this

Reply in this circumstance and on these

grounds --- a voluntary action now taken

after all the multiple refusals to do so

earlier --- should be rejected in any event,

unless it is indisputably clear that there

is no possibility of a case or controversy

before this Court. While we do not think

it appropriate for a party to initiate a

Motion without its bases stated so that it

could be responded to, and then, within 24

hours before the Court is to consider the

matter, to submit his basic Points and Au-

thorities, without an opportunity for coun-

sel to respond in the normal course, still

we recognize that even sua sponte this Court

would have to consider whether a matter be-

fore it is moot. Normally that would occur

where events or dates have passed which

moot the cause. Here, while we have the res-

pondent acting on his own to attempt to

create that condition, we suggest that even

this last minute effort hardly answers our

Opposition. As a consequence, we have had

to submit, for whatever consideration the

Court may wish to give it, and on this very

short notice, the matters set forth herein.

We first address omitted factual matters,

misapplications of the legal principles,

and then misreadings of the cases cited in

the Reply.

1. By no means is it clear, on the

basis of the record, that this cause is

moot. For reasons we have already stated,

we think it indisputably not moot, if for

no other reason, however characterized and

altered in this last-minute Reply, this is

nothing more than a voluntary cessation of

the action by a person who could return to

his previous ways. That doctrine is not

circumscribed to apply only to "officials"

or to "illegal" conduct. The thrust of the

reason for that principle is not the char-

acterization of the action, nor the name

or office of the person, but rather that

the promise of voluntary change, with-

drawal or cessation --- unilaterally made

while the law remains unchanged --- allows

him to "return to his old ways under the

existing circumstance." That is precisely

the case here. The just filed Reply tries

to create a special circumstance for

application of that principle (to officials

or illegalities only) that simply does not

exist. In our view respondent's actions are

"illegal" in the sense of the constitu-

tionally impermissible, just as in the cases

noted the acts were illegal because they

were statutorily impermissible. That aside,

these parties can go right back and do what

they did before and seek an adoption; or so

may one on their behalf, or the children.

They attempt now, 24 hours before this

matter is considered, after it has been

pending in the Courts for three and a half

years, to "stipulate" to what they "stipu-

lated" in the original divorce in 1968 and

in two Court orders in 1971 and 1972, but

never fulfilled. They refuse any relief

for more than 1200 days and on the final

day, just before consideration by the Court,

assert through a statement by counsel that

they will tell the lower Court they will

not seek an adoption hereafter. Interest-

ingly, (a) they do not confess error in the

action; (b) nor do they still cover acts or

contingencies to be done by others; (c) nor

do they even now say that if this Court

denies their Motion but rules for them on

the merits, after oral argument, that they

will agree to vacating the Order, which is

an entirely different matter from what is

*

stated in the Reply.—/

&

— We have no doubt that if this Court

should, as we think it must, deny the

Motion, or if it denies it without

prejudice to raise the issue of moot-

ness in the Brief on the merits, they

may well then say something to this

effect. It will be no more believable,

as Mr. Johnson's affidavit attached to

Our Opposition reflects, than their

other proffers. That has been their

course and conduct throughout. Only

when absolutely compelled do they agree

to something; and then only verbally,

followed by acts that do not carry it

out. It should be borne in mind that

the persons who are saying they are

willing now to "stipulate" also stipu-

lated in 1968 in a settlement agreement

incorporated in the Court Decree to

grant visitation rights which they did

not; they stipulated to a Consent Order

These matters aside, the simple fact

is that years later, after all the actions

taken here, a stacement of this kind made

for the first time, 24 hours before the

matter is considered by the Court, is

simply not to be accepted. Mr. Johnson has

filed an Affidavit which stands unrebutted

before this Court. It reflects a record

showing that these individuals appear to

have no respect for any Court Order where

the children are involved. Further, they

would always have an excuse to avoid the

statement made by counsel in any event; the

excuse would be changed circumstances,

which could always be charged or serve as

*/(continued) below that they would allow

fair visitation, and they did not. They

resisted every effort in the years of

litigation by means which show that when

the children have been involved, no

statement that they have made is to be

relied on. Indeed, if present counsel

ceased representing them in the future,

even this promise in a Reply would have

no effect.

a justification for further action. Clear-

ly when Mr. Johnson asks for joint custody

or very heightened visitation that claim

could be made. The fact is that with chil-

dren and custody-related matters, the cir-

cumstances are constantly changing. The

use of the adoption statute at issue and

its "best interests" standard is thus a

real fear, and a chill of clear substantive

and procedural rights, once the attempt

is made to exercise the substantive con-

stitutional rights in the relationship.

Even if this last minute statement

were credible, this Court cannot say, as

a matter of law, that there is no reason-

able expectation that these individuals on

this record would not do the same thing.

Apart from that, they are not the

7

ones alone who determine the matter.’

*

*/their position now neither preciudes

others nor the children themselves. In-

deed, the children have their own sep-

arate interest that the stepfather

cannot represent.

—

Nor has the Reply responded to the

fact that there is no” assurance whatsoever

that the D.C. Court of Appeals will withdraw

its Opinion, and in fact we suggest that it

will not. Nor will the Trial Court neces-

sarily withdraw its decision, since it has

Clearly found that the alleged "best inter-

ests of the children" require an adoption.

The only "fact" that has occurred

between that finding and now is that this

Court granted the writ of certiorari.

Respondent suggests that they co not

have any interest in the enforcement of

the statute. They had a very strong inter-

est in the enforcement of the statute for

three and a half years, until 24 hours

before this Court is to consider the Motion.

Of course the District of Columbia has been

notified about the pendency of the action

as required by Rule 28, since the constitu-

tionality of the statute is in question

o ID «

and at issue; and the same will apply to

the Briefs to be filed. The issue squarely

before the Court of Appeals in its Opinion

was nothing more than this issue: the con-

stitutionality of the statute, procedurally

and substantively; and this Court properly

granted the writ to hear the issue that

the Respondent urged on the Courts below

--- that the statute is constitutional;

it applies here and to Mr. Johnson; and

it can be used to obtain an adoption. It

borders on the disingenuous to suggest

otherwise.

The Reply next suggests that the cause

is private, and there is no public interest

in it. There is considerable public inter-

est in this case, reflected by the repeated

attempts to present views of various groups

by amici who filed in the case of Doe v.

Delaware, 79-5932 with which this case is

to be heard "in tandem" according to the

= il «

notice of grant of the writ; and from other

groups; and there has been considerable media

interest reflecting public interest as well.

This Court does not take cases that

do not have significant public interest in

them. This is one of those cases which

not only has the kind of public interest

that is reflected in its very grant of the

writ; it involves one of the most important

relationships, if not the most important

relationship, in society that is in itself

a matter of great public interest.

Therefore, unless it is indisputably

clear and undeniably the case under the

decided law, that there is no case or con-

troversy or stake in the outcome, this

Court should deny the Motion on this ground.

as well.

The public interest now is as great or

greater, and the controversy is as real as

it was when the suit was filed against

~ 17 @

Mr. Johnson three and a half years ago, or

on the day the Motion was filed, after the

grant of the writ. The best interests of

the children, whatever that may mean, and

the constitutionality of that concept has

not changed, nor is it changed by this Motion;

and its application to Mr. Johnson has not

been altered one whit. The position of the

children has not changed; the position of

Mr. Johnson has not changed; the statute has

not changed; the ruling of the Trial Court

has not changed; the Court of Appeals'

decision has not changed. The only "change"

is the grant of the writ followed by a

statement in his Motion agreeing to a va-

cating of the order without a confession

of error or the other matters noted in our

Opposition; and now in his just-filed

Reply a reference to some cases and a fur-

ther statement he will tell the lower Court

he will not seek an adoption in the few

- 13-

years remaining before the children reach

majority.

2. The Reply just submitted does not

adequately reply to the voluntary cessation

principles in the cases noted in our Memo-

randum in Support of the Opposition to Mo-

tion to Dismiss, p. 19. Nor does it address

Roe v. Wade, 410 U.S. 113, 125 (1973) or

DeFunis v. Odegaard, 416 U.S. 312 (1974),

both of which we noted at length; nor the

principles at p. 22, citing points in DeFunis

dissents, with which the majority does not

take issue but which it differently applied

in that case. Applying the first test of

United States v. Concentrated Phosphate

Export Assn., 393 U.S. 199, 203 to this

case, respondent attempts to limit it to

public officials. The cases do not support

him. Nor do they support his suggestion

that there must be some statutory violation

at issue before it applies. We urge this

is neither so nor should be so.

o 22 -=

He then supplies us for the first

time with his reliance on references in

Weinstein v. Bradford, 423 U.S. 147, 149

(1975) to the fact that the capability of

repetition concept allegedly applies only

where (1) 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. He also

* / ee /

cites Gannett— , Nebraska Press— , and

kee / P

Sosna - He turns that concept on its

head, however, after wholly extracting it

from context when he argues that our "dura-

tion" was not too short. It is too short,

*

— Gannett Co., Inc. v. DePasquale, 443 U.S.

368, 99 S.Ct. 2898 (1979).

k*

-“/wNebraska Press Assn. v. Stuart, 427 U.S.

539, 96 S.Ct. 2791 (1976).

ae /

Sosna v. Iowa, 419 U.S. 393, 95 S.Ct.

553° (1975).

o» 18 «

where the cessation or expiration is some-

thing he can do at any time. If he can do

what he wants to do now, and then himself

cease and cause the action to expire at any

time it will always be too short to be

fully litigated because he could do this

at any stage. That meets the first part

of Weinstein. Indeed as noted in Nebraska

Press (where the order at issue had expired)

if this Court does not address our matter

now, then on any review again, the next

"dispute will evade review, or at least

considered plenary review in this Court

coco” 427 U.S. .539, 547, 96 S.Ct. 2791,

2797 (1976). That is so because by then

the children or at least one of them will

have reached majority so that we will be

truly in a non-repeatable Weinstein/Sosna

situation, solely because of delays in

reaching the issue of the constitutionally

impermissible.

» 16 <

The second element cited from Wein-

stein as to potential repeatability is so

clearly met by our undisputed record that

‘it would be unduly repetitious to under-

score it.—

One more last-minute suggestion of

the Reply is that the statute might be

changed. That is true in every case and

k*

not a basis for mootness.—

*

— It might be noted in this regard that

this is a case where Mr. Johnson is not

a plaintiff, which might enable him more

readily to file a class action. He is a

defendant having a right taken away, ini-

tiated by the Respondent stepfather de-

fending on the ground that the source of

the action or any other action is a stat-

ute that is unconstitutionally applied to

him.

k*

— There is no indication that the statute

is going to be changed at all; and, in-

deed, if we read the direction of the

law, it is quite to the contrary. The

tendency has been to expand the power of

the State in this area to parental ter-

Mination statutes and broader sweeps.

It does apply now and it will continue

to do so; and it was applied here not

only to affect past facts and relation-

ships but also the present and the

future.

o 17 =

Contrary to what is asserted at page

3 of his Reply, there is general importance

and "public interest in litigating the val-

idity of the District of Columbia" adoption

statute authorizing an adoption in the face

of a natural father's objections, solely on

the basis of considerations of "best inter-

ests of the children" where there is no

oe

unfitness, abuse or abandonment.-—

*

*/the Reply suggests that the fact there

were other issues in the case below

is more reason for a remand. That is

specious. The issue is collateral

consequences; and, indeed, in County

of Los Angeles v. Davis, 440 U.S. 648,

BeGes 9+-(1979) this Court sug-

gested that the basis of mootness

there was not only that there was no

expectation that the violation would

occur again, but also that the interim

relief and events completely and ir-

revocably eradicated the effects of

the action. That is not the case here

at all.

= 18:=

The strong public interest that was

evidenced by this Court's grant of the Peti-

tion remains. The case, the controversy and

the disputes remain. The assertions in this

last-minute Reply are not responsive to the

issues nor the pertinent cases we have re-

ferred to. It might be noted that the un-

derlying facts asserted in our Opposition

are not disputed. In their stead is the

customary attempt to characterize facts by

some phrase such as "Shrill rhetoric"

(Reply p. 1); it transparently is no sub-

stitute for record facts; facts which may

even be "shrill" over these many years.

While we do not believe that there

can be serious doubt that all of the fac-

tors which prevent this cause fgpm being

determined as moot are clear, and for that

reason, the motion to dismiss should be

denied forthwith, we certainly are of the

view, and we think it is indisputably the

- 19 =

case, that it should not be granted on this

record and in this circumstance.

The final irony is that the Motion to

Dismiss has now added a further matter of

moment +o the other issues as to which the

writ was granted --- a case and controversy

about mootness standards themselves, in

this kind of cause through this method.

The Motion should be denied.

Respectfully submitted,

;

Edward L. Genn

1319 - 18th Street, N.W.

Washington, D.C. 20036

(202) 638-2027

Attorney for Petitioner

@- 20 «

No. 80-45

: Supreme Court of the United States

October Term, 1980

EUGENE JCHNSON III,

Petitioner,

Vv.

J.O.L. II,

Respondent.

On A Writ of Certiorari to the

District of Columbia Court of Appeals

I HEREBY CERTIFY THAT three copies ¢. |

of the foregoing were hand-delttvered to

the office of Hal Witt, Esquire, 1620 Eye

Street, N.W., Washington, D.C. 20006,

attorney for Respondent, this t?th day

of November, 1980. 2<>

Edward L. Genn

1319 - 18th Street, N.W.

Washington, D.C. 20036

Attorney for Petitioner

(202) 638-2027