Opposition — Bradt v. Smith

Offiee Supreme, Bourt, US,

TLD

JUN 29 1981

{VAS

No. 80-2042

In Tue

Suprene Court

of the United States

Octoszr Term 1980

L. T. Brant,

Petitioner

v.

Tae Honorasie Sxeann Smits, ET AL.,

Respondents

On Warr or Certrorart

To Tae Unrrep States Court Or Apprats

For Tue Fiera Craovrr

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Joun L. MoConn, Jn.

Ricuarp A, Saeeny

1100 Esperson Buildings

Houston, Texas 77002

(718) 237-2005

Counsel for Respondents

Tom ALEXANDER and

Bortizr, Boston, Rice, Coox

& Kwarp

Bowne of Houston, Ino. Printed In U.S.A.

QUESTIONS RESTATED

1. Should the petition for writ of certiorari be granted

to review the holding of the Court of Appeals that a trial or

evidentiary hearing is not required to rule on a Motion to

Dismiss filed pursuant to Rule 12(b)(6), Federal Rules of

Civil Procedure?

2. Should the petition for writ of certiorari be granted

to review the holding of the Court of Appeals that the

attorney-client privilege and the work-product immunity

are not rights, privileges or immunities secured by the

constitution and laws of the United States when they arise

in the context of a civil action in a state court?

8. Should the petition for writ of certiorari be granted

to review the holding of the Court of Appeals that peti-

tioner failed to allege a deprivation of his privilege against

self-incrimination under the fifth and fourteenth amend-

ments?

LIST OF PARTIES REQUIRED

BY RULE 34.1(b)

The following were parties to this case in both the

District Court and the Court of Appeals:

Tom Alexander

John B. Bible

John B. Bible & Associates, Inc.

L. T. Bradt

Butler, Binion, Rice, Cook & Knapp

The Honorable Shearn Smith

Page

Questions Restated ........ ROP Ne er ere ee i

ALD OE IE TELE LON TC TEE TELE ii

Index of Authorities ........ ot ale ee ar ee iv

Opinions of the Courts Below ........... oatavenrs awh ois 1

SRT OPE eT eT TET ETT ERTL TOE 1

Reasons for Denying the Petition .. .. .. 2

1, Bradt is not entitled to a trial or an ovidentiony hen.

ing in a Motion to Dismiss which is filed pursuant to

EE Cie cnceds snk tas neme ves bo5 tae'ey 0 2

2. The attorney-client privilege and the work product

immunity are not rights, privileges or immunities

secured by the constitution and laws of the United

States when they arise in the context of a civil pro-

ceeding ina state court... 6.06.06. eee cece ee 3

3. Bradt failed to allege a deprivation of his privilege

against self-incrimination under the fifth and four-

EE is vecccasecttbocessssisrecces “©

Conclusion ........... [Math avauch bee bae sche kate ine bees Y

I es seh peedndeteeheseeesseses co =

INDEX OF AUTHORITIES

CASES

Baker v. McCollan, 443 U.S. 137, 99 S.Ct.

2680, 61 L.Ed.2d 433 (1978) 0.0... cece cece eee eenees

Beckler v. Superior Court of Los Angeles County,

568 F.2d 661 (9th Cir, 1978) 0... 00... ccc cc eee eu eee.

Bellis v. United States, 417 U.S. 85 (1974) ................

Berry, Matter of, 521 F.2d 179 (10th Cir, 1975), 7 aa

423 U.S. 810 (1975), cert. denied, 423 U.S. 998 (1975).

Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969) ............

Chapman v. Houston Welfare Rights Organization,

ae Se ae eee ey

Cook v. Houston Post Co., 616 F.2d 791 (5th Cir. 1980) ....

Crocker v. Hakes, 616 F.2d 237 (5th Cir. 1980) ............

Fisher v. United States, 425 U.S. 391 (1976) ..............

Hanna v. Plummer, 380 U.S. 460 (1965) ..........0..004..

Herschel v. Smith, 361 F.2d 355 (9th Cir, 1966) ...........

Lefkowitz v. Turley, 414 U.S, 70 (1973) ...... 0.0006. 00 00,

Maness v. Meyers, 419 U.S. 449 (1975) ...... 0. 0.

Martinez v. State of California, 444 U.S, 277,

100 S.Ct. 533, 61 L.Ed.2d 481 (1980) .......... 0.0.0.4,

Murphy v. Waterfront Commission, 378 U.S. 52 (1964) ....

Nevels v. Wilson, 402 F.2d 479 (5th Cir. 1968) ............

National Labor Relations Board v, Trans Ocean Export

Packing, Inc., 473 F.2d 612 (9th Cir, 1973) ..............

OKC Corp. v. Williams, 461 F.Supp. 540 (N.D. Tex. 1978). .

Rader v. Baltimore & Ohio R. Co., 108 F.2d 980

(7th Cir. 1940), cert denied, 309 U.S, 682 (1941) ........

Sacks v. Reynolds Securities, Inc., 593 F.2d 1234

IN So ok csccsccrvcccsesss

Sarelas v. Porikos, 320 F.2d 827 (7th Cir. 1963)

Singler v. Lowrie, 404 F.2d 659 (8th Cir. 1968),

cert. denied, 395 U.S. 940 (1969) ...........

United States v. Mahady & Mahady, 512 F.2d

SE MED caccbcueesesesverses.

West v. Solito, 563 S.W.2d 240 (Tex. 1978) ....

42 U.S.C. §1983 .......... Oe eee

ee

SO MIIIRS, «5.0 vas doscovcsevdsiveess

Fed. R. Civ. Proc. 1 oo... 0... cccceseeueeeees

Fed. R. Civ. Proc. 12(b)(6) ............00000.

Fed. R. Civ. Proc, 26(b) ...........c0seseuee

IED ce civ coccevescovecccens

Fed. R. Evid. 101 ...........0.cccccceseeuees

ee)

Tex. Code Crim. Proc. § 38.10 ............000.

PG GER ove cscecvvscecvacacectios

TREATISES

5 Wright and Miller, Federal Practice and Procedure (1971) 2

No. 80-2042

In THE

Supreme Court

of the United States

Octoser TrRM 1980

L. T. Brapt,

Petitioner

v.

Tue Honoras.te SHEARN SMITH, ET AL.,

Respondents

On Writ or CERTIORARI

To Tue Unrrtep Srates Court Or APPEALS

For Tue Frera Circurr

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS OF THE COURTS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported as Bradt v. Smith, 634 F.2d

796 (1981). The Order of the United States District Court

for the Southern District of Texas is not reported.

STATEMENT OF THE CASE

The opinion of the Court of Appeals correctly states the

procedural background and facts of this case. For clarity,

reference to the parties in this Brief will be made by their

surnames.

2

REASONS FOR DENYING THE WRIT

The questions presented in the petition for writ of cer-

tiorari are not of national significance and are not appro-

priate for review by this Court. Bradt seeks to have this

Court apply the federal civil rights statutes to a pretrial

discovery matter in a civil proceeding in a state court. The

courts below applied well-settled principles of federal law

when they denied the relief sought by Bradt in this case.

Thus, there is no compelling reason why this Court should

review the disposition of this case by the courts below.

1. BRADT IS NOT ENTITLED TO A TRIAL OR AN EVIDEN-

TIARY HEARING ON A MOTION TO DISMISS WHICH

IS FILED PURSUANT TO RULE 12(b) (6).

In his first argument in the petition, Bradt claims that the

Court of Appeals erred when it affirmed the dismissal of

his Amended Complaint without giving him an opportunity

to present evidence in support of his allegations. (Petition

at 7-9). As this Court is aware, Alexander and Butler

Binion based their Motions to Dismiss on Rule 12(b)(6),

Federal Rules of Civil Procedure, and claimed that Bradt

failed to state a claim upon which relief could be granted.

(R. 38, 86). It is clear from the Rule, and the authorities,

that such a Motion is directed to the sufficiency of the claim

for relief, not the evidence in support of the claim. 5

Wright and Miller, Federal Practice and Procedure,

§§ 1356, 1866 (1971) ; compare Rule 12(b)(6) with Rule 56.

Alexander and Butler Binion recognize their burden

under Rule 12(b)(6). However, their position in the courts

below was that Bradt failed to state a cause of action

against them under 42 U.S.C. §§ 1983, 1985 and 1986 even if

the allegations contained in the Amended Complaint were

taken as true. The question before the Court of Appeals

was whether the Complaint itself stated a valid claim for

3

relief. If the Complaint was insufficient as a matter of law,

the trial court correctly dismissed it. Nevels v. Wilson, 402 °

F.2d 479 (5th Cir. 1968) ; Sacks v. Reynolds Securities, Inc.,

593 F.2d 1234 (D.C. Cir. 1978).

In short, Bradt does not challenge the merits of the dis-

missal in his first argument in the petition. Rather, he

claims that the method by which the trial court made its

decision, that is, based on the Amended Complaint alone,

was improper. This is precisely the procedure outlined in

Rule 12(b) (6), and it was entirely proper for the trial court

to make such a ruling. Since the allegations were taken as

true, a trial or evidentiary hearing would have served no

useful purpose. The trial court did not err when it followed

the dictates of Rule 12(b)(6), and dismissed the case

based on the pleading alone. Quite simply, Bradt was not

entitled to present evidence to the Court under this particu-

lar Rule. .

2. THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK

PRODUCT IMMUNITY ARE NOT RIGHTS, PRIVILEGES

OR IMMUNITIES SECURED BY THE CONSTITUTION

AND LAWS OF THE UNITED STATES WHEN THEY

ARISE IN THE CONTEXT OF A CIVIL PROCEEDING IN A

STATE COURT.

In his second argument in the petition, Bradt claims that

the Court of Appeals erred when it held that Respondents

were immune from liability under 42 U.S.C. § 1983. (Peti-

tion at 9). Bradt has clearly misread the opinion of the

Court of Appeals on this point. The Court did not hold that

Respondents were immune under the statute since the Court

never reached the issue. Rather, the Court found that there

was no deprivation of a federal constitutional or statutory

right, so there could be no liability under the statute. 634

F.2d at 799. Thus, the only issue before this Court is

whether the petition for writ should be granted to review

4

the finding that Bradt was not deprived of a federal right

in the state court proceeding. The section of the petition

dealing with the immunity issue is not relevant to this case,

since Bradt failed to meet the threshold requirement for

liability under 42 U.S.C. § 1983.

It is clear that the first inquiry in any action brought

under 42 U.S.C. § 1983 is whether the Plaintiff has been

deprivetl of a right “secured by the Constitution and laws”

of the United States. Baker v. McCollan, 443 U.S. 137

(1979). As an analytical matter, the federal court should

isolate the specific claim involved in order to determine if

it falls within the requirement of the statute. Martinez v.

State of California, 444 U.S. 277, 284 n.9 (1980). Section

1983 does not create any substantive federal rights, but

merely provides a remedy for a deprivation of a right

existing under another federal law. Chapman v. Houston

Welfare Rights Organization, 441 U.S. 600 (1979). A brief

review of the Amended Complaint, and the Petition, com-

pels the conclusion that Bradt failed to meet this threshold

requirement.

It is important to note that Bradt claims the depriva-

tion of federal constitutional and statutory rights resulting

from a discovery Order made by Judge Smith in the state

court proceeding. Bradt argues that the Order on Defend-

ants’ Motion for Production of Documents violated his

rights under the attorney-client privilege, work-product

immunity, and the fifth amendment. These Respondents

would show that the first two doctrines do not comprise

federal rights, and that the third doctrine has no appli-

cation to this case.

42 U.S.C. § 1983 is not concerned with violations of state

law. A cause of action under the statute will lie only when

such a violation results in a deprivation of a federal right.

5

Cook v. Houston Post Co., 616 F.2d 791 (5th Cir. 1980) ;

Crocker v. Hakes, 616 F.2d 237 (5th Cir. 1980) ; Singler v.

Lowrie, 404 F.2d 659 (8th Cir. 1968), cert. denied, 395 U.S.

940 (1969). As a general matter, the federal courts have

held that violations of state discovery rules are not cogniz-

able under § 1983. See, e.g., Sarelas v. Porikos, 320 F.2d

827 (7th Cir. 1963) (an alleged abuse of the deposition

procedure in the state court failed to state a claim under

§ 1983); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969)

(denial of hearing by state court judge on motion to vacate

previous order in probate matter did not present federal

claim). Of course, a federal court cannot amend a state

rule of civil procedure. Herschel v. Smith, 361 F.2d 355

(9th Cir. 1966). Although these cases provide general

guidelines in this area, these Respondents will discuss each

of Bradt’s theories separately and briefly.

The attorney-client privilege is a rule of evidence, not

a constitutional right. Maness v. Meyers, 419 U.S. 449, 466

n. 15 (1975); OKC Corp v. Williams, 461 F.Supp. 540, 546

(N.D. Tex. 1978); Fed R. Evid. 501. This is particularly

true in a civil case in which there are no sixth amendment

implications. As such, the privilege is a matter of state

law in a state court proceeding. If Judge Smith ordered

Bradt to produce documents in violation of the privilege,

he did so under state law. Beckler v. Superior Court of

Los Angeles County, 568 F.2d 661 (9th Cir. 1978) ; compare

Fed. R. Evid. 101 and Fed R. Evid. 501 with Tex. Code

Crim. Proc. § 38.10 and West v. Solito, 563 S.W.2d 240

(Tex. 1978). The attorney-client privilege arises under

federal law only when it is applied in the federal court.

Thus, as a rule of evidence, the federal doctrine was not

relevant to the proceeding before Judge Smith. Even if

the privilege was violated, it did not comprise a depriva-

tion of a federal constitutional or statutory right, and

cannot be the basis for a claim under § 1983.

6

The same rationale applies to the claim of work-product

immunity. This doctrine is recognized and contained in

both the federal and state rules of civil procedure. Fed.R.

Civ.Proc. 26(b); Tex.R.Civ.Proc. 186a. No court has

elevated this qualified immunity to a constitutional princi-

ple, and it is based solely on the rules of civil procedure.

The Texas court is under no burden to apply the federal

rule in its own proceedings. Rader v. Baltimore & Ohio

R. Co., 108 F.2d 980 (7th Cir. 1940), cert. denied, 309

U.S. 682 (1941); compare Fed.R.Civ.Proc. 1 with Tex.R.

Civ.Proc. 2; see also Hanna v. Plummer, 380 U.S. 460

(1965). The state is free to set the limits of the immunity

without interference from the federal court. In short, the

work-product immunity cannot provide the federal right

necessary under § 1983, since it is based on state law in the

state court.

3. BRADT FAILED TO ALLEGE A DEPRIVATION OF HIS

PRIVILEGE AGAINST SELF-INCRIMINATION UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS.

In his final argument in the petition, Bradt states that

his privilege against self-incrimination was violated in

the state court proceeding. He makes this claim without

any reference to his pleadings or the law. Quite simply,

the fifth amendment is not involved in this case. Bradt

makes a general claim that Judge Smith and these

Respondents violated his constitutional right against self-

incrimination through the use of “coercive measures under

the Texas Discovery Statutes.” (R. 53). More specifically,

Bradt complains that Judge Smith, on the Motion of these

Respondents, ordered Bradt to produce the files of all

clients who were former clients of Bible & Associates. (R.

50). There is no basis for application of the fifth amend-

ment under these facts.

7

Since the state court action is a civil proceeding, Bradt

may claim the privilege only if the contents of the docu-

ments might incriminate him in a future criminal suit.

Lefkowitz v. Turley, 414 U.S. 70 (1973). As the Court noted

in National Labor Relations Board v. Trans Ocean Export

Packing, Inc., 473 F.2d 612 (9th Cir. 1973):

... where [a fifth amendment] claim is made in a case

other than a criminal prosecution of the person claim-

ing the privilege, the claim may be rejected if, under

the circumstances, the witness may not reasonably

apprehend that the disclosures he is called upon to

make could be used against him in a criminal prosecu-

tion or could lead to other evidence that might be so

used.

Id. at 617, citing Murphy v. Waterfront Commission, 378

U.S. 52, 94 (1964) (White, J., concurring). There is no

claim here that the content of the documents would subject

Bradt to criminal prosecution. Rather, Bradt asserts that

he may be liable for criminal contempt if he refuses to

produce them. This possibility does not cloak the documents

with fifth amendment protection.

Furthermore, there is no privilege for Bradt as the cus-

todian of the records for his clients. A very similar situ-

ation to the case at bar was presented in Bellis v. United

States, 417 U.S. 85 (1974). There, a federal grand jury

issued a subpoena to a member of a dissolved law partner-

ship, which demanded the partnership’s financial books

and records. The lawyer refused to produce the documents

on fifth amendment grounds, and the District Court held

him in contempt. The Court of Appeals affirmed. Jn re

Grand Jury Investigation, 483 F.2d 961 (3rd Cir. 1973)

(per curiam).

This Court issued a writ of certiorari, and affirmed the

lower courts. The Court held that the partnership, although

8

small, had an institutional identity, and that there was no

fifth amendment protection for the custodian of the records,

The Court emphasized that the privilege is personal, that

is, it extends only to an individual’s private papers and tes-

timony. Thus, the Court found that the records of the firm

were not privileged even if they incriminated the lawyer

personally. See also Matter of Berry, 521 F.2d 179 (10th

Cir. 1975), stay denied, 423 U.S. 810 (1975), cert. denied,

423 U.S. 928 (1975), reh. denied, 423 U.S. 1039 (1976);

United States v. Mahady « Mahady, 512 F.2d 521 (3rd Cir.

1975). Of course, Bradt may not assert the privilege on

behalf of his clients. Fisher v. United States, 425 U.S. 391

(1976). In short, since the content of the files would not

subject Bradt to criminal prosecution, and they are in his

possession in a representative capacity, there is no fifth

amendment right involved here. See Beckler v. Superior

Court of Los Angeles County, 568 F.2d 661 (9th Cir. 1978).

It is clear that the use of the state discovery rules in this

case, even if improper, did not implicate any right “secured

by the Constitution and laws” of the United States. The

Order for production of documents issued by Judge Smith,

in the state court, under the state rules of civil procedure,

is a matter of state law. There is no federal right involved

here. Thus, the Court of Appeals correctly affirmed the

dismissal of Bradt’s Complaint for failure to state a claim

upon which relief could be granted. Fed. R. Civ. Proce.

12(b) (6); Baker v. McCollan, 443 U.S. 137 (1979).

9

CONCLUSION

It is clear from the authorities discussed herein that the

Court of Appeals applied principles established by this

Court when it affirmed the dismissal of Bradt’s Amended

Complaint for failure to state a claim upon which relief

could be granted. Respondents Alexander and Butler

Binion respectfully request this Court to deny the petition

for writ of certiorari.

Respectfully submitted,

Joun L. McConn, Jr.

Ricuarp A. SHEEHY

1100 Esperson Buildings

Houston, Texas 77002

(713) 237-2005

Counsel for Respondents

Tom ALEXANDER and

Butter, Bruton, Rice, Coox

& Kwapp

10

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the fore-

going Brief in Opposition to Petition for Writ of Cer-

tiorari was forwarded, regular mail, postage prepaid, to

all counsel of record on this 18th day of June, 1981.