Opposition — Johnston v. Silva

(wes

Supreme Court, U. $,

FILED

2EC 29 1980

MICHAEL RODAK, J |

i OR,

NO. 80-821 —_ CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

MARLIN W. JOHNSTON, et al.,

Petitioners

VS.

DELFINO SILVA, et al.,

Respondents

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GERALD A. GARCIA

TEXAS RURAL LEGAL AID, INC.

305 East Jackson, Suite 206

Harlingen, Texas 78550

AC 512-423-3111

Attorney for

Respondents

fs

QUESTIONS PRESENTED

Respondents feel it is appropriate to restate the

questions presented by Petitioners as follows:

1. Did the district court have jurisdiction over this

action ug@er 28 U.S.C. §1343(3) and the substantial

constitutional question test of Hagans v. Lavine, 415

U.S. 528 (1974).

2. Did the federal court below properly grant

notice relief to class members injured by a state

regulation once the state modified the regulation during

litigation thus mooting part of the claim.

3. Were the facts supporting the federal statutory

challenges to the State AFDC disability regulations

sufficiently related to the facts surrounding the constitu-

tional challenges to the same regulations to support

the exercise of pendeuni jurisdiciiun over the statutory

claims.

4. Does the Eleventh Amendment preclude an order

of class notice where the State objects to the expense

but fails to present an adequate factual basis for their

objection and where the notice is almost identical to

the class notice approved in Quern_v. Jordan, 440

U.S. 332 (1979).

TABLE OF CONTENTS

PAGE

TRIES ON WOTROMITINS ooo iiccesscsccscenssvccdessoobesccs -iii-

EAT I OE FE oso iscaas cS ccsessicuccsca@pnerspnateates 2.

SERTEMENE OF THE CASE ico ooociccscceccscdsccccrsoocoass 2

REASONS FOR DENYING THE WRIT ...........c0:00006 3

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-lii-

INDEX OF AUTHORITIES

CASES PAGES

Chapman v. Houston Welfare Rights

Organization, 441 U.S. 600 (1979) .......... cece eee eeeeeees 4

Curtis v. Taylor, 625 F.2d 645 (Sth Cir. 1980) ........... 4

Dandridge v. Williams, 397 U.S. 471

SEEMED ‘neous chavs boniider nedectosahseektieiedihabbiad tacnecaseasinannl 6

Doe v. Klein, 599 F.2d 338 (9th

Ge SOIR ee ncevhbahadadihantailiod cous tiiueceucab betes vatathanassael 4

Piast vy. Cohen, BS U.S. GB. (1SSG) ccvcccccccccccccssncsosves 7

Hagans v. Lavine, 415 U.S. 528 (1974) ............066- 4,5,6

Herweg f. Ray, 619 F.2d 1265 (8th

HUTT niasieiins + vthin cvcdintes pboniarlemtnahsdbel sedbuaiisgewuianta 4

Hutto v, Pinney, 487 U.S; 678 (1978) ...0.c.ccccessesecscess 9

Louise B. v. Coluatti, 606 F.2d 392,

SE TEs,” MUU diessndé tnnbeveesvinsectn dbeuscdésetubnnctbinauenienn’ 4

Milliken vy. Bradley, 433 U.S. 267 (1977) ..........sseeeeees a

Quern v. Jordan, 440 U.S. 332 (1979) .............ceeeees 7,9

Rosado v. Wyman, 397 U.S. 397 (1970) ............. 4,5,6,8

iv

Shands v. Tull, 602 F.2d 1156 (3rd

i is hissed du biestbabbpenbeectsececsseccccvscsooscecert 4

Sosna v. lows, 419 U.S. 398 (1975) .......ceccccccccccccccees 7

Townshend v. Swank, 404 U.S. 282 (1971) ................ 6

United Mine Workers of America v. Gibbs,

aes. a asestondeccdsowsbnsecassoceuoes 8

STATUTES

28 U.S.C. §1331, Federal Question (1980) ............. 2,3,8

EEE nos. cass skcoddweesebsodvoccccstovbocovece 2,3

. »

NO. 80-821

IN THE

Somreme Court of the United States

OCTOBER TERM, 1980

MARLIN W. JOHNSTON, et al.,

Petitioners

VS.

DELFINO SILVA, et al.,

Respondents

os

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ee ee | ee

The Respondents, Delfino Silva and Jose Miranda,

respectfully request that this Court deny the petition

for writ of certiorari, seeking review of the Fifth

Circuit’s opinion in this case. That opinion is reported

at 621 F.2d 640, sub. nom. Silva v. Vowell.

-2-

STATUTES INVOLVED

28 U.S.C. §1343(3):

The district courts shall have original

jurisdiction of any civil action authorized by

by law to be commenced by any person:

(3) to redress the deprivation, under

color of any State law, statute, ordinance,

regulation, custom or usage, of any right,

privilege or immunity secured by the Constitu-

tion of the United States or by any Act of

Congress providing for equal rights of citizens

or of all persons within the jurisdiction of

the United States;

28 U.S.C. §1331. Federal Question (1980):

The district courts shali have original

jurisdiction of all civil actions arising under

the Constitution, Jaws or treaties of the

United States.

STATEMENT OF THE CASE

The Respondents add the following to the Petitioners’

statement of the case:

Respondents’ original complaint alleged jurisdiction

under 28 U.S.C. §1331, (fedesui quesiion) as well as

28 U.S.C. §1343.

-3-

The district court granted partial summary judgment

to Respondents in December, 1978 but Petitioners did

not raise challenges to jurisdiction and to the class

issues until April 26, 1979. All parties eventually

approved the class description and notice in June of

1979 and the class notice has been issued.

Respondents also refer the Court to the ‘‘History

of the Litigation’’ Appendix to Judge Tate’s opinion in

the Fifth Circuit below.

This Appendix is at pages A-28 through A-31 of

Petitioners Petition for Writ of Certiorari.

REASONS FOR DENYING THE WRIT

I.

It is unnecessary for the Supreme Court to consider

the jurisdiction questions presented in this case. The

question of the substantiality of a constitutional claim

sufficient to invoke jurisdiction under 28 U.S.C. §1343(3)

has become unimportant in federal question cases as

a result of the recent removal by Congress of the

$10,000 jurisdictional amount requirement of 28 U.S.C.

§1331. P.L. 96-486, December 1, 1980.

Respondents alleged in their original complaint,

jurisdiction under 28 U.S.C. §1331. The federal courts

now have jurisdiction in this case under 28 U.S.C.

§1331 due to the federal questions raised. The expanded

availability of §1331 jurisdiction makes it improbable

that the substantial constitutional claim issue will be

present in future cases involving federal questions.

The courts below found the Respondents had alleged

in their original complaint a substantial constitutional

claim sufficient to support the district court’s exercise

-4.

of pendent jurisdiction over the related statutory attack

on the State AFDC disability requirements. The lower

courts fully considered and correctly applied the test

of Hagans v. Lavine, 415 U.S. 528 (1974) to reach

this conclusion. See also Rosado v. Wyman, 397 U.S.397

(1970). The rulings helow do not conflict in any way

with the Hagans test. To counsel’s. knowledge. there _ is

no dispute among the circuit courts in the application

of this test. See e.g. Herweg v. Ray, 619 F.2d 1265,

1269 (8th Cir. 1980), Curtis v. Taylor, 625 F.2d 645,

649 (Sth Cir.. 1980), Shands v. Tull, 602 F.2d 1156,

1158 (3rd Cir. 1979), Doe v. Klein, 599 F.2d 338, 340

(9th Cir. 1979), Louise B. v.Coluatti, 606 F.2d 393,

400 (3rd Cir. 1979).

‘The Petitioners rely on Chapman v. Houston Welfare

Rights Organization, 441 U.S. 600 (1979) to support

their argument that the federal courts cannot assume

jurisdiction in this case. However, Chapman must be

distinguished from this case and Hagans because in

Chapman there was no constitutional claim at all.

Petitioners’ equal protection claim in this case

alleges that the Texas AFDC disability standard un-

reasonably created two classes of needy children of

disabled parents; (a) needy children of totally incapac-

itated parents and (b) needy chiidren of parents who,

though not totally incapacitated, were, due to their

incapacity, incapabie oi providing even minimai support

to their children. The state granted benefits to the

frst class and denied benefits to the second.

In Hagans, the Supreme Court considered almost

the exact jurisdiction question presented in this case.

In Hagans, a New York AFDC regulation was in

question. Following the Hagans test, the court below

stated:

cy

_

=~ In light of the Hagans test, we are

convinced that the plaintiffs’ Equal Protection

claim in their original complaint was a

substantial constitutional claim sufficient to

support the district court’s exercise of pen-

dent jurisdiction over the related statutory

attack on the disability reuirements. Texas’s

decision to deny AFDC benefits to needy

children whose fathers’ partial incapacity

prevented them from obtaining an income

sufficient to support their children, despite

their being ‘‘capable of light work,’’ is

unquestionably not ‘‘so patently rational as

to require no meaningful consideration.”’

Hagans v. Lavine, 415 U.S. at 541, 94

S.Ct. at 1381. We therefore hold that the

plaintiffs’ original complaint presented e sub-

stantial constitutional question for purposes

of permitting consideration by the federal

district court of related pendent claims. See

e.g-, Hagans v, Lavine, supra; Rosado v.

Wyman , 397 U.S. 397, 90 S.Ct. 1207, 25

L.Ed.2d 442 (1970).

Petitioners’ argument that Respondents did not

allece a anbstanital constitutional claim is without

merit. Both courts below fully considered Petitioners’

arguments after extensive oral argument and briefing

and ruled against Petitioners on this point. Petitioners

do not even discuss the Hagans test in their argument

aad imply that the courts below failed to inquire into

the substantiality of the Respondents’ claims. The

lower court opinions belie this argument. The present

-6-

case is similar to numerous other welfare cases which

raise both constinutional and federal statutory claims.

e.g. Dandridge v. Williams, 397 U.S. 471 (1970);

Townshend v. Swank, 404 U.S. 282 (1971); Hagans v.

Lavine, supra.; Rosado _v. Wyman, supra.

The jurisdiction issue raised in this case is also

unimportant because the Respondents’ constitutional

and statutory claims were based upon unique Texas

AFDC disability regulations which are no longer in

existence. Therefore the due process and equal pro-

tection challenges raised in this case do not apply to

any other present or future litigants and will not

foreseeably recur. It is therefore unnecessary for the

Court to review the jurisdiction question which was

correctly decided below.

The Petitioners did not raise their jurisdictional

objections until three and one-half years after the

litigation was started and four months after the trial

court granted partial summary judgment for the Respon-

dents. Because of this the record below is obscure

and it is unwise for the Court to use this record for

consideration of the jurisdiction questions.

II.

This Court should not review the Petitioners’ claim

that class notice relief should not have been granted

because the class notice has already been sent to the

class members. Also, the nature of the class in this

case and the mootness issue were unique to the

Texas, AFDC regulations which have now been repealed

by the State. Therefore, the Petitioners’ claim is no

longer a live issue and consideration of the argument

would be meaningless.

-*%

“70

The Petitioners did not challenge the class issue

until three and one-half yoars after the case was

filed. In addition, the Petitioners approved the class

description and notice which was ordered by the

district court. Petitioners have therefore waived their

right to raise objections to this class notice relief.

Petitioners’ claim that the class notice relief was

based on a moot issue is without merit and the cases

cited by Petitioners, e.g. Flast v. Cohen, 392 U.S 83

(1968) and Sosna v. Iowa, 419 U.S 393 (1975) do not

apply to the facts in this case. In the present case

there were still live issues to be resolved by the

Court. The majority panel below correctly noted that

‘(t]he Plaintiffs’ claim for a notice to the class was

not mooted by the revision of the regulations, any

more than a claim for pre-revision damages would

have been.’’ The Court further stated that ‘‘[g]iven

the facts of this case and the intertwined nature of

the facets of the challenged standard, . . . the

Plantiffs’ suit presented a ‘case or controversy’ within

the meaning of Article III.’’

Thus, unlike the situation in Sosna and Flast.

there were still live issues and a real ‘‘case or

controversy’ which warranted relief by the court. The

cases relied upon by the Petitioners are, therefore,

distinguishable from the present case. The class notice

relief ordered by the court is almost identical to that

approved in Quern y, Jordan, 440 U.S. 332 (1979).

-8-

Petitioners’ third question presented to this Court

argues that the district court should not have exercised

pendent jurisdiction over Respondents’ statutory claims.

This issue was resolved by the recent removal of the

$10,000 jurisdictional amount requirement of 28 U.S.C.

$1331.

Respondents’ original complaint alleges 28 U.S.C.

§1331 as an alternative jurisdictional hasis for this

case and jurisdiction can be assumed thereunder. The

federe! courts no longer need to exercise pendent

jurisdiction over federal questions covered by 28 U.S.C.

§1331. Petitioners’ pendent jurisdiction question is no

longer important and it would be meaningless for the

Court to review this issue.

The lower courts fully - considered and _ correctly

applied the standards of Rosado v, Wyman, 397 U.S.

397 (1970) and United Mine Workers of America vy.

Gibbs, 383 U.S. 715 (1966) and ruled that Respondents’

constitutional and federal question claims derived from

the same ‘“‘common nucleus of operative fact’’. Peti-

tioners’ claims that the constitutional and _ statutory

challenges were unrelated are without merit. As the

majority panel stated:

The constitutional claims relating to the

invalidity of the light work requirement and

to the invalidity of the sixty-day duration

requirement as a basis for denying or ter-

minating AFDC benefits, ::d the statutory

claims (based on the Supremacy Clause)

relating to the invalidity of these same two

facets were (to mix a metaphor) four intert-

wined strands of the same ball of wax.

9.

The exercise of pendent jurisdiction by the courts

below was based on facts and state regulations which

are unique to this case. In addition, the state regulations

were repealed. Thus, this issue is not of national

importance and the decision below applies only to the

facts at hand.

IV.

The Petitioners’ fourth claim does not warrant

review because the issue was mooted when the court-

ordered class notice was sent to the class by Petitioners

in the summer of 1980.

Petitioners’ objection to the cost of sending the

class notice is without merit because the notice ordered

by the court below is almost identical to the notice

ordered in the recent Supreme Court case of Quern_y.

Jordon, 440 U.S. 332 (1979). Also, the opinion below

correctly followed law established in the recent Supreme

Court cases of Hutto vy, Finney, 437 U.S. 678 (1978) and

Milliken v. Bradley, 433 U.S. 267 (1977) to support

their decision. Counsel is not aware of any conflicting

decisions in the circuits on the class notice issue.

Petitioners’ objection to the cost of sending notice

was never supported by a factual presentation in the

record and no effort was made by the Petitioners to

show that the cost of the notice would, in the words

of Hutto, interfere with the‘'State’s budgeting process.’

Thus, the lower courts’ order correctly follows recent

Supreme Court pronouncements on this issue. Judge

Tate, in his opinion peiow, stated further:

* >

For these reasons,

Certiorari should be denied.

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The defendants have contested this litiga-

tion at every stage over the past five

years without ever raising any substantive

defense to the plaintiffs’ contention that

the disability standard is both unconstitu-

tional and inconsistent with federal law.

We find no merit to their contentions that

the Eleventh Amendment protects them

from paying for an explanatory notice to

the class or that the administrative costs

of preparing and mailing such a _ notice

outweigh the possible benefits to the class.

CONCLUSION

Respectfully submitted,

GA Lore’

GERALD A. GARCIA

TEXAS RURAL LEGAL AID,

Review of this issue by the Supreme Court would

be meaningless because the class notice has already

been sent and the State regulations complained of

have been repealed.

the Petition for a Writ of

vare

Batre

305 E. Jackson, Suite 206

Harlingen, Texas 78550

(512) 423-3111

Counsel for Respondents

-l]-

CERTIFICATE OF SERVICE

I, Gerald A. Garcia, do hereby certify that 3

true and correct copies of the foregoing Opposition to

Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit has been sent

to Mark White, Attorney General of Texas; David H.

Young, Assistant Attorney General; and Kathryn A.

Reed, Assistant Attorney General, P. O. Box 12548,

Capitol Station, Austin, Texas 78711 by United States

Postal — Certified, Return Receipt Requested,

this 223" day of December, 1980.

GERAED A. GARCIA