Jurisdictional Statement — Louisiana v. Hryhorchuk

"Office - Supreme Court, U.S.

FILED

82-6388 SEP 20 1982

No. ALEXANDER L. STEVAS.

CLERK

In The

Supreme Court of the United States

OCTOBER TERM, 1981

STATE OF LOUISIANA

Defendant-Appellant,

VERSUS

Roy HRYHORCHUK

Plaintiff-Appellee.

On Appeal from the

Supreme Court of Louisiana

JURISDICTIONAL STATEMENT

WILLIAM J. GUSTE, JR.

Attorney General

CHARLES L. PATIN, JR.

Assistant Attorney General

Chief, Civil Division

THOMAS S. HALLIGAN

Assistant Attorney General

DEPARTMENT OF JUSTICE

Post Office Box 44005

Baton Rouge, Louisiana 70804

Telephone (504) 342-7013

i

QUESTIONS PRESENTED

1. Did the Louisiana District Court and reviewing

state appellate courts deprive defendant-appellant of

due process and equal protection of the law in this partic-

ular case by taking tentative, speculative, and merely-

possible factual findings articulated by an appellate court

on a previous appeal for the sole and limited purpose of

testing and overruling a previously granted motion by

defendant-appellant to dismiss at the close of plaintiff’s

evidence and misapplying such findings to the ultimate

merits of the case on remand as though they were final,

fully adjudicated findings, for the radically different

purpose of ultimately deciding the case, without a full

and fair review and analysis of all the evidence in light of

the properly applicable procedural and substantive law,

when such misapplication of such factual findings occurs

in no other like case in Louisiana?

2. Did the Louisiana Supreme Court, the Louisiana

Court of Appeal, and the Louisiana District Court de-

prive defendant-appellant of due process and equal pro-

tection of the law by relieving plaintiff-appellee of his

burden to prove the elements of his alleged cause of

action and placing upon defendant-appellant not merely

the burden of going forward with some evidence but

rather the entire ultimate burden of both proof and per-

suasion on the merits, when in all other like cases in

Louisiana such burden of proof and persuasion on the

merits is always plaintiff-appellee’s and never shifts

therefrom?

3. Did the Louisiana Supreme Court, the Louisiana

Court of Appeal, and the Louisiana District Court vio-

ii

late due process of law and equal protection of the laws

in arbitrarily holding that, of two persons in the exact

same factual circumstances—i.e., both present and

viewing, at the very same time, the very same accident

scene and the very same potential hazards thereof—one

was negligently liable in failing to foresee, and take steps

to prevent, the risk of harm to the other but the other

was not contributorily negligent in failing to foresee, and

take steps to prevent (e.g., merely walking a few paces

out of the foreseeable danger zone) the exact same risk

of harm to himself, especially when the substantive law

of Louisiana in all other cases at least requires the exact

same standards for both negligence liability and contrib-

utory negligence bar to recovery?

4. Did the Louisiana Supreme Court, the Louisiana

Court of Appeal, and the Louisiana District Court de-

prive defendant-appellant of due process and equal pro-

tection of the law by improperly holding defendant-

appellant liable, under the doctrine of respondeat

superior, for the actions of a person over whom

defendant-appeliant did not have any power of direction

and control nor any other real, factual connexity which

would permit a reasonable and non-arbitrary casting of

vicarious liability on a faultless defendant-appellant for

the fault of another, although such power of direction

and control and factual connexity is required for vicari-

ous liability under the doctrine of respondeat superior to

attach in all other like cases in Louisiana?

5. Did the Louisiana Supreme Court deny defen-

dant-appellant due process and equal protection of the

law by allowing judgment to be rendered against

defendant-appellant even though it was not truly a par-

ticipant nor adequately given notice of the suit at the

outset, though such rights are required to be given all

other defendants in all other like cases in Louisiana?

6. Did the Louisiana state courts, particularly the

appellate courts, deny defendant-appellant due process

and equal protection of the law in this particular case by

arbitrarily and capriciously casting civil liability on

defendant-appellant without a meaningful hearing in a

meaningful manner and/or a meaningful appeal, in hold-

ing defendant-appellant liable while refusing to acknowl-

edge and address at all several principal issues that were

properly raised by defendant-appellant and obviously

need to be resolved in order to find defendant-appellant

liable in this civil case, a case conceded by the state

judiciary to have warranted, under state practice, a

non-summarial, full-scope appellate treatment and opin-

ion by the appellate court, when all other defendant-

appellants in all other like cases in Louisiana are af-

forded such rights denied herein?

LIST OF PARTIES

The parties to the proceeding in the court whose

judgment is appealed from are as follows: Roy Hryhor-

chuk, plaintiff-appellee; Travelers Insurance Company,

defendant-appellee; Louisiana Department of Transpor-

tation and Development, defendant-appellee; State of

Louisiana, defendant-appellant; Roy M. Smith, defen-

dant (position taken on appeal unknown); State Farm

Automobile Insurance Company, defendant (position

taken on appeal unknown); William R. Clifton, defen-

iv

dant (position taken on appeal unknown); and Pennsyl-

vania General Insurance Company, defendant (position

taken on appeal unknown).

V

TABLE OF CONTENTS

Page

e er i

. ccc cakd ceadaceueeveas cidenccs iii

— ND 65 55. m ne vi

e 1

e 2

Constitutional and Statutory Provisions Involved. 2

e 3

The Questions are Substantial .................. 21

eee 27

. eee 29

vi

TABLE OF AUTHORITIES

Cases: Page

Aetna Gas and Sur. Co. v. Flowers, 330 U.S. 464,

67 S.Ct. 798, 91 L.Ed. 1024 (1947)........... 27

Arceneaux v. Texaco, Inc., 623 F. 2d 924 (U.S.

rene eee eee 19

Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct.

1187, 14 L.Ed 2d 62 (1986500))ß 7 24

Badeauz v. East Jefferson General Hospital,

364 So.2d 1348 (La. App. 4th Cir., 1978) ..... 19

Blanchard v. Ogima, 253 La. 34, 215 So.2d

SE Sn eee ese 18

Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct.

780, 28 L.Ed. 2d 113 (1971) .............+.-. 23-24

City of New Orleans v. Levy, 233 La. 844, 98 So.2d

Z 16

Crain v. State, 23 So. 2d 336 (La. App. Ist Cir.,

eee eee 7

Florence v. Clinique Laborutories, Inc., 347

So. 2d 1232 (La. App. Ist Cir., 1977) ......... 19

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983,

32 L.Ed. 2d 556 (1942)))0ꝝnꝝü 23

Greenup v. Barney, 315 So.2d 910 (La. App. 4th

Z 16

Gunter v. Plauche et al., 399 So. 2d 727 (La.

DIe 14

Hryhorchuk v. Smith, 412 So. 2d 197 (La. App.

„ BEE cbbdbveedepebasdccocccees passim

Keen v. Pel State Oil Co., Inc., 332 So. 2d 286

(La. App. 2nd Cir., 19760))))))) 19

vii

P

Laird v. Travelers Indemnity Co., 236 So.2d 561 =

(La. App. 4th Cir., 19700))O 15

Lewis v. State, 207 La. 194, 20 So.2d 917 (La.,

blen eee eee 7

Livingston Supply Co. v. Basso, 164 So. 2d 141

(La. App. Ist Cir., 1984))))))))))j)) 15

Mitchell v. Bertolla, 340 So.2d 287 (La., 1976) .... 14

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865

99 ccthecbvdceéecavcdes 24

Ned v. Hertz Corp., 356 So.2d 1074 (La. App.

Gre. .es 15

Reynold v. Sims, 337 U.S. 533, 84 S.Ct. 1362,

III 24

Sansonni v. Jefferson Parish School Board, 344

So.2d 42 (La. App. 4th Cir., 1977) ........... 16

State v. Texas Co. et al., 199 La. 846, 7 So.2d 161

(1942) and, after remand, 205 La. 517, 17

rr „eee eee 7

Stewart v. Gibson Products Company of

Natchitoches Parish, Louisiana, Inc., 300

So.2d 870 (La. App. 3rd Cir., 1974) 20

Sullins v. City of Shreveport, 229 So.2d 390 (La.

III.. 15

Traders and General Ins. Co. v. Robison, 289

So.2d 178 (La. App. Ist Cir., 1973) .......... 19

U.S. v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88

X 27

Wallace v. Shreveport Rys Co., 175 So. 86 (La.

oe. eee ese eee 15

Welch v. Crown-Zellerbach Corp., 359 So.2d 154

ga. . . . „eee e 14

United States of America ............... passim

Louisiana Constitution Article V, 885,

eee ee passim

Louisiana Constitution Article 12, §10............ 7

Statutes:

rr e en 2

rere esse 7

eee eee eee sees 12

Goon ccccccedacccscccces passim

rene see eee 12

J a accbhcvctdivcccecceccsdoves 13

ls CEs Mey Ga ese de eee 7

Arne sees eee 22

rr eee 18

n EEE ob cnedocccconnhesondocacedosens 7

eee eee e eee eee 19

Others:

1

No.

In The

Supreme Court of the United States

OCTOBER TERM, 1981

STATE OF LOUISIANA

Defendant-Appellant,

VERSUS

Roy HRYHORCHUK

Plaintiff-Appellee.

On Appeal from the

Supreme Court of Louisiana

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The decision of the Louisiana Supreme Court’s de-

nial of defendant-appellant’s application for writs of cer-

tiorari and review (dated June 21, 1982) is reported at

416 So.2d 117 (La., 1982) (App. A, infra). The decision of

the Louisiana Court of Appeal for the Third Circuit af-

firming the district court’s decision on remand is re-

ported at 412 So.2d 197 (La. App. 3rd Cir., 1982) (App.

B, infra). The judgment on remand and the reasons

therefor of the Fourteenth Judicial District Court for the

Parish of Caleasieu, dated June 12, 1981, are not offi-

cially reported (App. C, infra).

The previous opinion of the Louisiana Supreme

Court, affirming in part, reversing in part, and remand-

ing the case back to the district court is reported at 390

So.2d 497 (La., 1980) (App. D, infra). The previous deci-

sion by the Louisiana Court of Appeal for the Third Cir-

cuit affirming and amending the trial court’s judgment is

reported at 379 So.2d 281 (La. App. 3rd Cir., 1980)

(App. E, infra). The previous judgment and reasons

therefor of the Fourteenth Judicial District Court for the

Parish of Calcasieu, dated December 29, 1978, are not

officially reported (App. F, infra).

JURISDICTION

This is an appeal from the denial of a writ of cer-

tiorari and review by the Louisiana Supreme Court on

June 2, 1982. No application for rehearing is permitted

by Louisiana law. Appellant’s notice of appeal to the

United States Supreme Court was filed with the Louisi-

ana Supreme Court, the Louisiana Court of Appeal for

the Third Circuit, and the Fourteenth Judicial District

Court for the Parish of Calcasieu on September 16-17,

1982. This appeal is taken pursuant to 28 U.S.C.

§1257(2).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This appeal involves the constitutionality of the

manner in which the Louisiana state courts applied what

are otherwise facially-valid, general state constitutional,

statutory, and court rule provisions concerning the

courts’ jurisdiction and procedure and the substantive

law applicable to this case. It is the particular activity in

| ERRATUM:

——

On page 2, at the beginning

of the third line under

caption “JURISDICTION",

June 2, 1982" should

this case of these state courts acting under their gener-

ally granted constitutional and statutory powers, but not

those state constitutional and statutory provisions them-

selves on their face, that is alleged to violate the federal

constitution. Pertinent state constitutional and statutory

provisions that are involved in the context of this case

are set forth in Appendix “I” hereof. Their citations are

as follows: La. Constitution Article 4, §§5(A) and 8, Ar-

ticle 5, §$5, 10, 16, and Article 12, §10. Louisiana C.C.P.

Articles 1265, 1635, 1810(B), 2128, and 2129. La. R.C.C.

Articles 453, 2286, and 2320. Louisiana R.S. 13:5107 and

42:1.

Defendant-appellant contends that the actions of the

state courts in this case violate the due process and equal

protection clauses of Section 1 of the Fourteenth

Amendment to the Constitution of the United States of

America, to wit:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

STATEMENT OF THE CASE

The overall inquiry presented on this appeal is

whether the Louisiana state judiciary, acting pursuant

to their judicial function and jurisdiction under the con-

stitution and laws of the state and rules of the state

4

court, violated the due process and equal protection

clauses by the manner in which the state’s courts cast

civil liability on defendant-appellant in this particular

personal injury case.

As a necessary reference to an understanding of the

context in which the issues on this appeal arose, an over-

view of the proceedings below is appropriate. This per-

sonal injury case proceeded to trial consolidated with a

related insurance coverage declaratory judgment action.

Defendant-appellant submits that it had not been prop-

erly served per se with notice of the lawsuit and was, for

all real, practical purposes, unrepresented by counsel at

that time. At the close of plaintiff’s presentation of evi-

dence and before any defendant was given the opportu-

nity to present evidence, several defendants (including

two agents of defendant-appellant) made and were

granted motions to dismiss at the close of plaintiff’s evi-

dence. The trial judge continued the trial as to other

defendants and found them liable to plaintiff in damages

for personal injuries. Plaintiff appealed the summary

dismissals (at the close of plaintiff’s evidence) as to those

defendants (including two agents of defendant-appellant)

who were granted such motions to dismiss at the close of

plaintiff's evidence, and the defendants who completed

their trials and were found liable to plaintiff appealed

their judgments. The Louisiana Court of Appeal for the

Third Circuit affirmed all judgments as to party liability

or non-liability but reduced the quantum of award to

plaintiff against those few defendants found liable. The

Louisiana Supreme Court granted writs, reinstated the

quantum as to those who had been found liable, reversed

5

the ruling on the motions to dismiss at the close of plain-

tiff’s evidence as to the two agents of defendant-

appellant, postulated that defendant-appellant would be

liable but in a manner wholly unrelated to and uncon-

nected with and not “through” defendant-appellant’s two

agents but also conflictingly opined that defendant-

appellant had always been a party because it was named

through these two agents, even though service of pro-

cess (notice of the lawsuit) was never properly served on

defendant-appellant itself as principal, but only on the

two agents, and defendant-appellant was not repre-

sented by any counsel attempting to defend defendant-

appellant itself. Rather, one of defendant-appellant’s

agents was represented by counsel for the agent’s in-

surer who took the position that defendant-appellant it-

self should be held liable directly rather than the insured

agency and its insurer. Only after such holding, then

informally informed of the Louisiana Supreme Court’s

opinion, did defendant-appellant’s counsel (the attorney

general) file an amicus brief on rehearing only. The

state’s high court denied rehearing. The case was then

remanded to complete the trial. Shortly prior to the then

remanded continuation of this trial previously begun,

piaintiff-appellee at last caused defendant-appellant to

be properly served with his petitions and notice of the

basis of his claims. Defendant-appellant participated

after remand; however, the trial continued from the

point of the previous ruling at the close of plaintiff’s

evidence, and plaintiff-appellee’s witnesses, other than

plaintiff himself, were not brought back to allow

defendant-appellant to cross-examine them. De-

fendant-appellant did, however, put on witnesses that

6

had not testified previously and brought out new testi-

mony and evidence that clearly showed key errors in the

previous evidence and in the previously postulated fac-

tual findings formulated from the plaintiff’s evidence

alone in the prior trial. However, the state trial and

appellate courts sitting below the Louisiana Supreme

Court took the factual findings of the state’s high court

from the prior appeal, which findings were only

postulated by the high court as tentative, speculative,

merely-possible facts findable only from evidence pre-

sented by and favorable to plaintiff for the limited pur-

pose of testing and overruling a motion to dismiss at the

close of plaintiff’s evidence, and considered them to be

some kind of already “determined facts” for purposes of

ultimately deciding the case on the merits from all the

evidence, refused even to consider and address necessar-

ily adjudicative issues properly raised by defendant-

appellant, and, though conceding that the case was one

in the class of cases requiring, under state practice,

non-summarial, full-scope treatment and opinion and

giving lip-service thereto, meaninglessly affirmed the

liability of defendant-appellant on the basis of the al-

ready “determined facts” from the previous (interlocu-

tory) appeal to the Louisiana Supreme Court (at a time in

which defendant-appellant, as explained above, was not

really itself a true participant). The Louisiana Supreme

Court easily avoided defendant-appellant’s issues by

simply denying defendant-appellant’s writ application

(though two of the seven justices voted to grant the

writ). From these rulings of the Louisiana state judi-

ciary, defendant-appellant takes this appeal to this Hon-

orable Supreme Court of the United States as the last

7

resort in the hope that this Honorable Court will order

the state’s judiciary to give a truly fair and meaningful

hearing to defendant-appellant in this case and on the

necessarily adjudicative issues defendant-appellant has

properly raised in same.

The importance of these events to this appes are

manifold. It must be clearly understood under Louisiana

law that sovereign immunity of the state, its separate

agencies, and its separate political subdivisions (includ-

ing parishes [counties] as bodies politic), is waived in

state court personal injury suits under a recognized rule

that the sued body politic or agency, having, for pur-

poses of such suits, the capacity of a private person per

Louisiana Revised Civil Code Art. 453 and other law,

must therefore be given the same rights, including on-

stitutional rights, as any other private party litigant (La.

Constitution Art. XII, Section 10; Lewis v. State, 207

La. 194, 20 So.2d 917 (La., 1945) and Crain v. State, 23

So.2d 336 (La. App. Ist Cir., 1945); that, therefore, in

such suits every procedure which violates due process

and/or equal protection is the same procedure as can be

used with respect to any and all other litigants and is a

universal violation of due process and/or equal protec-

tion; and that the relationship of state (body politic) and

state agency (department) is likened, for state lawsuit

purposes, to the relationship between principal-in-

interest and agent or mandatary, State v. Texas, Co. et

al., 199. La. 846, 7 So.2d 161 (1942) and, after remand,

205 La. 517, 17 So.2d 569 (1944). Citation and service of

process (notice of the lawsuit) upon the state (body poli-

tic) as the principal-in-interest is effected, under La.

R.S. 13:5107 and La. C.C.P. Art. 1265, only by service

8

upon the Governor, the chief executive officer of the

State (La. Constitution Art. IV, Section 5), or the At-

torney General, the chief legal officer and dejure “coun-

sel of record” in civil cases for the state (La. Constitution

Art. IV, Section 8). Although citations were addressed

to the “State through the Department of Public Safety”

and the “State through the Department of Highways,”

no service thereof was properly made upon the “State of

Louisiana” (body politic) as the principal, but only upon

such principal’s agents (the two departments). It is thus

contended that the principal itself lacked sufficient no-

tice to be cast in judgment, particularly on grounds

wholly unrelated te such principal’s relationships to the

two such agents served and that such lack of notice vio-

lated due process (and also equa! protection as no other

parties are to be treated thus under Louisiana practice).

In fact, the Department of Transportation and De-

velopment (Highways) sent in attorneys who purported

to represent their department only and set up a defense

aimed to show only that Constable Smith was not an

employee of the department alone, and the Department

of Public Safety, worse yet, was represented only by

counsel for Travelers (providing its insured with a de-

fense) who ultimately contended that the State Treasury

rather than Travelers was liable for damages (in other

words, a defense in direct opposition to the principal-in-

interest). The Louisiana Supreme Court, as it turns out,

virtually held, before the principal-in-interest as ever

served with citation or other notice of the lawsuit, that

the principal-in-interest was liable for Constable Smith

directly without regard to (and not “through”) the two

agencies and wholly unrelated to them.

9

Thus, without true participation by defendant-

appellant per se, which had not yet been served with

notice of the lawsuit, the plaintiff put on his presentation

of evidence in chief at trial. Following his presentation of

evidence, certain of the defendants, including the two

agents of defendant-appellant, moved the court to dis-

miss the plaintiff’s case against them pursuant to La.

Code of Civil Procedure (CC) Art. 1810(B). Article

1810(B) provides,

In an action tried by the Court without a jury,

after the plaintiff has completed the presentation of

his evidence, any party, without waiving his right to

offer evidence in the event the motion is not

granted, may move for a dismissal of the action as to

him on the ground that upon the facts and law, the

plaintiff has shown no right to relief. The court may

then determine the facts and render judgment

against the plaintiff and in favor of the moving party

or may decline to render any judgment until the

close of all the evidence.

These motions to dismiss at the close of plaintiff’s

evidence were granted as to those defendants who were

the alleged “masters” of Justice of the Peace’s Constable

Smith. The trial was continued as to the other defen-

dants, and they were found liable to plaintiff-appellee in

damages for personal injuries.

The state Court of Appeal, Third Circuit, affirmed

the CCP Art. 1810(B) dismissals and affirmed the liabil-

ity of the other defendants cast in final judgment but

reduced the quantum of award.

reversed the reduction in quantum of the award. The

10

state’s high court also affirmed the liability of those de-

fendants who had completed trials and been cast in

judgment. Then, in testing the propriety of the granting

of the CCP Art. 1810(B) motions, the state’s high court

(using the tests for CCP Art. 1810(B) motions—i.e., a

postulated set of merely-possible facts gleaned only from

plaintiffs’s presentation of evidence and only from evi-

dence, therefore, most favorable to plaintiff)—overruled

and reversed the granting of the CCP Art. 1810(B)

motions to the two agents of defendant-appellant, opin-

ing conflictingly that defendant-appellant was named in

the suit through its two so-named agents but also that

the postulated liability of defendant-appellant lay in its

relationship directly to the constable and not through the

only two so-named agents of defendant-appellant served

with notice of the lawsuit.

It was only after remand from this decision of the

Louisiana Supreme Court that defendant-appellant was

at last properly served with notice of the lawsuit. But

when counsel for defendant-appellant faced the proceed-

ings on remand, what counsel discovered was that trial

began where it had left off—at the close of plaintiff’s

evidence. Plaintiff-appellee’s witnesses were not

brought back for cross-examination. Moreover, the ac-

tual attitude of the courts was that the Louisiana Su-

preme Court, in overruling the CCP Art. 1810(B) mo-

tion, had expressed its final decision on the merits of this

trial (even before defendant-appellant was ever served

with notice of the lawsuit), and that the courts would go

through the motions of a trial and appeal procedurally

but, as for any practical substantive outcome, the out-

11

come on the merits expressed by the Louisiana Supreme

Court, even in merely overruling a CCP Art. 181008)

motion, would have to be fulfilled. Thus, in spite of the

fact that defendant-appellant put on witnesses that had

not yet testified and brought out new and different tes-

timony and evidence showing key errors in the previous

evidence and the prior misunderstandings of the true

factual situation and in spite of new issues which were

properly and timely raised by defendant-appellant and

which, under the law, need to be resolved in order to

cast liability on defendant-appellant, these courts,

though conceding that this case required non-summarial,

full-scope treatment and opinion (particularly on appeal)

and paying lip-service to same, simply refused to ac-

knowledge and address, much less attempt to resolve,

these issues and evidence and rendered judgment

against defendant-appellant in accordance with what

they felt to be the wishes of the Louisiana Supreme

Court as expressed on the prior appeal. In fact, the

Court of Appeal, Third Circuit, expressly relied on the

already “determined facts surrounding the accident” and

“the conclusions of law based upon those facts.”

Highlighting what is submitted to be the arbitrari-

ness of such a decision is the context of Louisiana law

concerning the circumstances and effect of the prior Lou-

isiana Supreme Court opinion before remand and its

supposed non-effect on defendant-appellant’s right to be

heard on subsequent issues and defenses.

First among the context of Louisiana law in this

regard are the issues which were properly and timely

raised, as the errors occurred, but which the state courts

12

refused to acknowledge and address. The Louisiana pro-

cedural law as to raising such issues is liberal. C.C.P.

Art. 1635 states:

Art. 1635. Exceptions unnecessary

Formal exceptions to rulings or orders of the

court are unnecessary. For all purposes it is suffi-

cient that a party, at the time the ruling or order of

the court is made or sought, makes known to the

court the action which he desires the court to take or

his objection to the action of the court and his

grounds therefor; and, if a party has no opportunity

to object to a ruling or order at the time it is made,

the absence of an objection does not thereafter prej-

udice him.

As to raising the issues on appeal, C.C.P. Arts. 2128 and

2129 state,

Art. 2128. Same; determination of content

The form and content of the record on appeal

ä — Ang sr

court, except as provided in the constitution. How-

ever, ‘within three days, exclusive of holidays, after

service of a copy of this designation on the other

party, that party may also designate in a writing

filed with the trial court such other portions of the

record as he considers necessary. In such cases the

clerk shall prepare the record on appeal as so di-

rected, but a party or the trial court may cause to be

filed thereafter any omitted portion of the record as

a supplemental record. When no designation is

made, the record shall be a transcript of all the pro-

13

ceedings as well as all documents filed in the trial

court.

Art. 2129. Assignment of errors unnecessary; ex-

ception

An assignment of errors is not necessary in any

appeal. Where the appellant designates only

portions of the record as the record on appeal, he

must serve with his designation a concise statement

of the points on which he intends to rely, and the

appeal shall be limited to those points.

As for this particular case, no particular parts of the

record were designated, and the appeal was heard on the

entire record. By rules, the Supreme Court of Louisiana,

for writ applications, and the Louisiana Courts of Ap-

peal, for appeals and rehearing applications, (the proce-

dures this case followed) has provided for defining as-

signments of error (forming the basic issues) in, respec-

tively, the writ application and appellate brief. De-

fendant-appellant has faithfully done so.

Secondly, these issues arose in connection with a

remand after the state’s high court postulated a theoret-

ical factual situation for the limited purpose of testing

and overruling a motion to dismiss at the close of plain-

tiff’s evidence under C.C.P. Art. 1810(B), supra. In

cases before a judge alone and not a jury, such as this

one, some distinctions have now recently been made in

the different state Court of Appeal circuits concerning

the evidenciary standard to be applied, although its ap-

pears that at the time of this case in the Third Circuit,

the view of the evidence in the light most favorable to

plaintiff, was the standard. Be that as it may, to deter-

mine ultimate facts as to liability against a defendant,

14

who has not yet even been given the opportunity to

present evidence, offends all notions of justice, even

under Louisiana law. Gunter v. Plauche et al., 399 So.2d

727 (La. App. ist Cir., 1981). Likewise, it is submitted

that it is arbitrary simply to rely on such postulated,

theoretical factual findings made from only plaintiff's

presentation of evidence for the ultimate decision on the

merits without giving either a meaningful acknowledg-

ment of or a meaningful analysis to the defendant’s evi-

dence, especially when that evidence is new and contains

some uncontroverted showings that some key errors in

the prior factual findings had been made.

Thirdly, it must be clearly understood that no kind

of collateral estoppel exists at all in Louisiana, and the

Civilian Law doctrine of “res judicata” under La. Re-

vised Civil Code Art. 2286 is extremely narrower than

the Common Law concept thereof. Welch v. Crown-

Zellerbach Corp., 359 So.2d 154 (La., 1978), preceded by

Mitchell v. B » lla, 240 So.2d 287 (La., 1976). Thus, no

findings in the first appeals in this case on the merits of

plaintiff-appellee’s action against other defendants can

affect at all plaintiff-appellee’s alleged action against

defendant-appellant, and issues and assignments of er-

rors (“grounds”) raised by defendant-appellant after re-

mand cannot be arbitrarily ignored or “estopped” by

anything that occurred on the previous appeals. Given

this context of Louisiana law, arbitrariness and capri-

ciousness is clearly inferred by a court’s refusal to ad-

judge such necessary issues and grounds.

In Louisiana, as in all other states, in an action for

personal injuries sustained as a result of the alleged neg-

15

ligence of a defendant, the burden is on the piaintiff to

prove all of the essential elements to establish negli-

gence on the part of the defendant. Sullins v. City of

Shreveport, 229 So.2d 390 (La. App. 2nd Cir., 1969). It is

elementary that the plaintiff must produce proof in sup-

port of each and every element of his claim. Livingston

Supply Co. v. Basso, 164 So.2d 141 (La. App. Ist Cir.,

1964). Since the plaintiff must prove every element of his

cause of action, the defendant needs only to defeat the

plaintiff on one element to win. Laird v. Travelers In-

demnity Co., 236 So.2d 561 (La. App. 4th Cir., 1970). In

a negligence action, such as the present case, the plain-

tiff has the burden of proof and ultimate persuasion

throughout, and the trial judge at the conclusion of the

trial weighs all the evidence offered and determines the

preponderance. Ned v. Hertz Corp., 356 So.2d 1974 (La.

App. 4th Cir., 1978).

As the Court in Wallace v. Shreveport Rys. Co., 175

So. 86 (La. App. 2nd Cir., 1973) stated,

“The onus of proof, after the prima facie show-

ing, strictly speaking, did not shift, but it did then

devolve upon defendant to adduce proof of lack of +

negligence of its part.

“Although it has sometimes been stated that

the burden of proof will shift to defendant on plain-

tiff making out a prima facie case, this statement is

inaccurate, and, where defendant sets up a plea or

answer denying its liability, the main burden of

proof does not shift, but is on plaintiff throughout

the case, even where a presumption of negligence

exists, although where plaintiff introduces evidence

sufficient to make out a prima facie case, it is then

incumbent on defendant in order to prevent a recov-

16

ery to introduce evidence sufficient to overcome

such showing by plaintiff. . . .”

The general rule is that the plaintiff, seeking to re-

cover on a theory of negligence, is required to establish a

prima facie case of negligence on the part of the defen-

dant, after which the burden is on the defendant to go

forward with evidence to rebut the inference of negli-

gence. Sansonni v. Jefferson Parish School Board, 344

So.2d 42 (La. App. 4th Cir., 1977). It is axiomatic that

the plaintiff must first establish this prima facie case

before the defendant is obliged to reout. Greenup v.

Barney, 315 So.2d 910 (La. App. 4th Cir., 1975). The

obligation to rebut plaintiff’s prima facie evidence is the

only “burden” to be placed on the defendant.

As explained by the Louisiana Supreme Court in

City of New Orleans v. Levy, 233 La. 844, 98 So.2d 210

(La., 1957),

“The burden of evidence... sometimes

termed the burden of producing, or going forward

with, the evidence, or the burden of procedure,

shifts, or may shift, from side to side during the

progress of the trial. . . This burden of evidence is

so continued until the party having the burden of

proof establishes a prima facie case; nothing less will

shift the burden of evidence. When such a prima

facie case is established, the burden of evidence is

shifted to the adverse party; the adverse party may,

by the production of evidence destroying the prima

facie case against him, satisfy the burden and re-

store it to the original party.”

Therefore, while the burden of evidence or the bur-

den of going forth with evidence may shift from party to

party, the burden of proof and ultimate persuasion never

17

shifts from the plaintiff. This distinction is made clear in

the Levy and Wallace cases, supra. The Louisiana Su-

preme Court, the Court of Appeal, and the district

court, in failing to note this distinction, placed an im-

proper burden of proof and ultimate persuasion on

defendant-appellant that is never placed on other liti-

gants in like circumstances and thereby violated due

process and equal protection.

The Louisiana courts below effected an illegal and

unconstitutional placing of the entire burde” of proof and

persuasion, which by law is placed on plaintiff, upon the

defendant State of Louisiana to show that a “change”

was warranted “in the court’s [already] determined facts

surrounding the accident” and “in the conclusions of law

based upon such facts.” Hryhorchuk v. Smith, 412 So.2d

197,200 (La. App. 3rd Cir., 1982). Thus, in this case, this

improper shifting of the burden of proof and persuasion

from the plaintiff (who would, in all other like cases,

retain this burden throughout the course of the litiga-

tion) to defendant-appellant, possibly by confusing the

burden of proof with the burden of evidence, is arbitrary

and invidious in effect and thus violative of the due pro-

cess and equal protection clauses of the Fourteenth

Amendment to the United States Constitution.

It is, likewise, submitted to be a violation of due

process and equal protection clauses of both the federal

and state constitutions for a state court to hold any per-

son liable for damages caused through no fault of his own

but only vicariously for an employee under the guise of

respondeat superior, when the situation does not have

the element of control expressed in Louisiana Civil Code

Article 2320, which states,

18

Art. 2320. Masters and employers are answer-

able for the damages occasioned by their servants

and overseers, in the exercise of the functions in

which there are employed.

Teachers and artisans are answerable for the

damage caused by their scholars or apprentices,

while under their superintendence.

In the above cases, responsibility only attaches,

when the masters or employers, teachers and arti-

sans, might have prevented the act which caused

the damage, and have not done it.

This is the same as the Common Law rule embedded

in stare decisis at the times of the adoption of the Consti-

tution of the United States and the Fourteenth Amend-

ment thereto. Therefore, to hold a person liable without

the element of control as expressed, for example, in the

last sentence of Article 2320, above, in essence, arbitrar-

ily casts liability on a faultless or innocent defendant for

the tort of another over whom he had no control nor

reasonable factual connection to warrant liability. One

might simply, arbitrarily choose the richest man in town

for liability.

The context of Louisiana law follows the general

rule: A master or employer is liable for the tortious con-

duct of a servant o employee which is within the scope

of employment, but a principal is not liable for the torts

of a non-servant agent. Restatement of the Law, Sec-

ond, Agency, § 250.

An agent’s negligence is not imputable to the princi-

pal and the principal is not liable for such negligence

unless a master-servant relationship exists between the

parties. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902

19

(La., 1968); Traders and General Ins. Co. v. Robison,

289 So.2d 178 (La. App. Ist Cir., 1973); Badeaux v. East

Jefferson General Hospital, 364 So.2d 1348 (La. App.

4th Cir., 1978). Since liability should not be broadly or

liberally imposed on a master or employer for the torts of

his servant or employee where the master is not himself

at fault, masters are only held liable for the acts of ser-

vants over whom they have control, as opposed to agents

over whom they have little control. Keen v. Pel State Oil

Co., Inc., 332 So.2d 286 (La. App. 2nd Cir., 1976); Flor-

ence v. Clinique Laboratories, Inc., 347 So.2d 1232 (La.

App. Ist Cir., 1977). As the Fifth Circuit Court of Ap-

peals recently stated,

“A principal may be held liable for an agent’s

negligence if there is master-servant relationship.

The indicia of such a relationship are the right of the

principal to control the agent’s time and physical

activities and the existence of a close physical rela-

tionship between them.” Arceneaux v. Texaco,

Inc., F. 2d 924 (U.S. App. 5th Cir., 1980).

The mere fact that a constable is a public officer

does not automatically transform him into a state officer.

Under Louisiana law, R.S. 42:1 defines “public office” as

any state, district, parish or municipal office. An exami-

nation of the element of control leads to the inescapable

conclusion that a constable is a parochial office and not a

state office.

Thus, it is further submitted to be a violation of

equal protection for the state courts in this same case to

apply the “power of control” standard to the Calcasieu

Parish Sheriff's office and to the Calcasieu Parish Police

Jury (the legislative governing body of the body politic,

Caleasieu Parish, itself) in order to find non-liability,

while at the same time refusing to apply the same stan-

dard to defendant-appellant so that liability could be

arbitrarily cast on defendant-appellant without any ref-

erence or regard to the lack of such power to control the

manner of performing daily tasks and activities, etc.

Finally, the context of Louisiana law in which these

issues arose is also that the very same factors and stan-

dards are to be applied alike to determine negligence

liability and contributory negligence bar to recovery.

Stewart v. Gibson Products Company of Natchitoches

Parish, Louisiana, Inc., 300 So.2d 870 (La. App. 3rd

Cir., 1974). It is uncontroverted that Smith, defendant-

appellant’s alleged “servant,” and plaintiff-appellee were

both viewing the very same accident scene and the very

same hazards thereof for the very same appreciable

length of time before Clifton knocked Smith’s parked car

into plaintiff-appellee. In fact, plantiff-appellee was not

as busy as Smith, but sat on or stood near a bridge rail

near the side and rear of Smith’s car where he could

observe the previous eastbound vehicles coming up to

Smith’s car and being directed around the hazardous

area and where he could observe whatever foreseeable

risks of harm to himself there were right in plain view in

front of him. Yet the state’s courts ruled that Smith was

negligent in failing to foresee the risk of harm to

plaintiff-appellee and to take preventive steps not to

breach any duty with respect thereto but that plaintiff-

appellee was not contributorily negligent in also failing

to foresee the very same risk of harm and taking preven-

tive steps (merely walking a few paces out of the risk

21

area) to avoid same. It is submitted that such dichotomy

of treatment of the very same factual situation provides

the classic equal protection violation. In the manner

done herein to cast legal liability on one in a judicial

forum, it also violates due process.

THE QUESTIONS ARE SUBSTANTIAL

In the foregoing Statement of context in which the

questions presented on this appeal arose, the questions

presented hereinabove were defined both factually and

legally with respect to this particular case, and it should

be obvious that they provide a ratio decidendi to the

ultimate outcome on the merits of this case and to its

validity. For example, the generally classic federal equal

protection question as to the dichotomy of treatment

concerning negligence liability and contributory negli-

gence bar to recovery operating in the same identical

factual circumstances with respect to foreseeability of

risks, etc., is an issue which goes directly to the heart

and essence of whether ultimate liability can be validly

cast on defendant-appellant in this case under the appli-

cable state law which requires no overriding state inter-

est to the contrary but rather that the same factors and

standards be used. In conjunction with the questions

presented herein about the state courts’ failure to pro-

vide a meaningful hearing herein after proper notice of

the lawsuit was served, the state courts simply refused

to acknowledge and address, much less resolve, this

generally classic federal equal protection issue, nor the

other issues, properly raised by defendant-appellant.

Had they done so, a judgment worth $627,389.24 could

not and would not, it is submitted, have been cast. As it

stands now, such equal protection question presented

herein could and should, by itself alone or in cumulative

conjunction with the other questions presented herein,

turn the entire case and invalidate the judgment. Thus,

there can be no doubt about the substantiality of the

questions presented herein.

But the substantiality of the federal constitutional

questions presented on this appeal, defined and de-

scribed hereinabove, transcends the substantial value of

this case alone. These questions on appeal herein reach

to the heart of the very foundations of American society,

for the Louisiana courts below, particularly at the Court

of Appeal level, have, as explained hereinabove, con-

ceded that this case is one requiring non-summarial,

full-scope treatment and opinion. Contrary to any coun-

tervailing overriding state interest in such doctrines as

collateral estoppel and Common Law scope res judicata

for judicial economy, the Louisiana courts have long de-

clared, as explained in the Statement, supra, that

neither collateral estoppel nor Common Law scope res

judicata exists at all whatsoever in Louisiana, but rather

only the very narrow one-party-on-one-party, same

identical “grounds,” and same demand type of res

judicata peculiar to the Civilian-Law-based Louisiana

Revised Civil Code Art. 2286. Thus, the judicial, lack-

of-timely-notice (service of process) treatment given to

defendant-appellant in this case by the Louisiana judi-

ciary, as described and explained more fully in the

Statement hereinabove, is proclaimed by the state

courts to be the very same treatment and process that

can be imposed in Louisiana at the state court’s whim in

any given ordinary proceedings case, one-party-on-one-

party, from its outset. And it is submitted that such

treatment and lack of timely judicial process, described

and defined more fully in the Statement, supra, falls

woefully short of the fundamental notions required by

American society and its constitution.

As Mr. Justice Harlan explained in Boddie v. Con-

necticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed. 2d 113

(1971),

Perhaps no characteristic of an organized and

cohesive society is more fundamental than its eree

tion and enforcement of a system of rules defining

the various rights and duties of its members, en-

abling them to govern their affairs and definitely

settle their differences in an orderly, predictable

manner. Without such a “legal system,” social orga-

nization and cohesion are virtually impossible; with

the ability to seek regularized resolution of conflicts

individuals are capable of interdependent action

that enables them to strive for achievements with-

out the anxieties that would beset them in a disor-

ganized society. Put more succinctly, it is this injec-

tion of the rule of law that allows society to reap the

benefits of rejecting what political theorists call the

“state of nature.”

It is fundamentally unfair and, therefore, unconsti-

tutional to hold a defendant liable in damages without

addressing the defendant’s arguments in defense. Bod-

die v. Connecticut, supra; Fuentes v. Shevin, 407 U.S.

67, 92 S.Ct 1983, 32 L.Ed. 2d 556 (1972). Due process

requires, at a minimum, that absent a countervailing

state interest of overriding significance, persons who

must settle their claims through litigation must be given

a meaningful opportunity to be heard, granted at a

24

meaningful time and in a meaningful manner and without

a shifting in burdens of proof or persuasion. Boddie,

supra; Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct 1187,

14 L.Ed. 2d 62 (1965). Even though the formality and

procedural requisites for the hearing can vary depending

upon the importance of the interest involved and the

nature of the subsequent proceeding, the litigant must

be given the opportunity for a hearing before he is de-

prived of a property interest. Without this hearing in a

meaningful manner appropriate to the nature of the

case, the mandates of the Due Process Clause have not

been complied with. Boddie, supra, at 786-787; Mullane

v. Central Hanover Bank & Trust Co., 339 U.S. 306 at

313, 70 S.Ct 652 at 656, 94 L.Ed. 865 (1950). The Louisi-

ana courts below are merely sought herein to fulfill, in a

constitutionally valid manner, their basic duties under

the laws and rules by which they ordinarily operate; no

new duties for them are urged herein.

Closely allied to and somewhat overlapping these

due process requirements and certainly not mutually

exclusive from them, are the requirements of equal pro-

tection. The questions presented on this appeal drive to

the very axiomatic foundations of even the most minimal

notions of equal protection—that is, “equal protection of

the laws” means that no one shall be denied the same

protection of the laws enjoyed by or afforded to others in

like circumstances. See, for example, Reynolds v. Sims,

377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed. 2d 506 (1964) and

other cases too numerous to cite. In this case on appeal,

the state courts not only failed to articulate any rational

basis or overriding state interests in treating defen-

dant-appellant differently and in failing to afford

defendant-appellant the same protection and defenses of

the laws afforded to other litigants (especially defen-

dants) in similar cases and circumstances, before casting

them in a substantial money judgment, but they,

moreover, made even no pretense whatsoever that there

were any rational classifications (nor any different clas-

sifications at all, rational or otherwise) into which defen-

dant-appellant might fall. They simply, arbitrarily de-

nied to defendant-appellant the same legal defenses,

procedures, and protections afforded to others under

state law, as more fully described and explained here-

inabove.

The question presented with respect to the state

courts’ thrusting on defendant-appellant in this case the

ultimate burdens of not only proof but also persuasion,

while in all other like cases such burdens are always on

plaintiffs and not defendants in similar circumstances, is

more than an incidental procedural question in this case.

The opinion of the Louisiana Court of Appeal, Third Cir-

cuit, in stating that defendant-appellant failed to carry

the burden of showing that a “change” was warranted in

the already “determined facts surrounding the accident

or in the conclusions of law based on such facts,”

explicitly relied on such thinking as the ratio decidendi of

its decision to affirm the judgment on the merits herein

against defendant-appellant. Since the Louisiana Su-

preme Court merely denied defendant-appellant’s writ

application, this question presented on appeal here

strikes at the only articulated reason for the judgment

appealed from.

The question concerning the same standards and

factors for negligence liability and contributory negli-

gence bar to recovery, too, follows the basic, axiomatic

equal protection meaning, for, contrary to purporting to

create a differentiating classification or a countervailing

state interest, the state law, as described in the State-

ment, supra, confirms that the same factors and stan-

dards are to be used. Thus, defendant-appellant’s posi-

tion is not that equal protection with respect to this issue

was violated in the face of having to balance a state law

interest to the contrary, but rather that both equal pro-

tection and state law were contravened by the judg-

ments in the state courts below. This state law issue was

never passed on, and no contrary state law interest

vis-a-vis the equal protection issue was ever articulated,

all because the state courts below arbitrarily in violation

of due process and equal protection refused to acknowl-

edge and address these issues (assignments of error),

even though they were properly and timely raised, as

explained in the Statement, supra.

The question presented regarding the casting of

vicarious liability on a faultless defendant for the fault

(tort) of another over whom he does not have the power

of control that is universally recognized as the primary

indicia of respondeat superior liability nor even from

whom he receives any real economic benefit, also entails

invidious wealth discrimination, as such arbitrary over-

reachings to cast liability on faultless defendants is, as

was the case herein, usually motivated by a desire to

catch someone (even only nominally connected with the

case) who has the potential or substantial ability to pay

large damage awards.

27

CONCLUSION

For any one or more of the foregoing reasons, prob-

able jurisdiction should be noted for this appeal.

As an equally viable alternative, however, at this

point, attention must be given to the fact that, as ex-

plained hereinabove, the state courts arbitrarily in viola-

tion of due process and equal protection ignored many

state law issues properly and timely raised by

defendant-appellant in this case. Some of these state law

issues, if they were faced and decided by the state courts

below, could have provided other dispositions of this

case which might have otherwise avoided the federal

constitutional questions raised, though, as the case

stands now with the state courts’ refusal to acknowledge

and address these other state issues, this case stands

ripe for the federal constitutional questions explained

herein. Thus, it is brought to this Honorable Court’s

attention that the most facile way of giving effect to the

constitutional protections which were violated in this

case, might be, at least at this stage of the case, to treat

this appeal perhaps as a writ application for the sole

purpose of reversing or merely vacating the judgment

appealed from herein and remanding to the Louisiana

Supreme Court for a decision on these other issues of

state law that remain as yet unresolved herein, similar

to what was done, for example, in U.S. v. Ballard, 332

U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1943) and Aetna

Gas. and Sur. Co. v. Flowers, 330 U.S. 464, 67 S.Ct.

798, 91 L.Ed. 1024 (1946).

WILLIAM J. GUSTE, JR.

Attorney General

Assistant Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

Post Office Box 44005

Capitol Station

Baton Rouge, Louisiana 70804

(504) 342-7013

Attorneys for State of Louisiana

CERTIFICATE OF SERVICE

I, Thomas S. Halligan, one of the assistant attor-

neys general for the State of Louisiana, appellant herein,

and a member of the Bar of the Supreme Court of the

United States, hereby certify that on the seventeenth

day of September, 1982, I served copies of the foregoing

Jurisdictional Statement, by mailing copies thereof in

duly addressed envelopes, with first class postage pre-

paid, upon the following:

Fred H. Sievert, Jr.

Post Office Box 2900

Lake Charles, Louisiana 70602

Reid K. Hebert

Post Office Drawer 1705

Lake Charles, Louisiana 70602

William J. Doran, Jr., and

William R. Kivett

704 South Foster Drive

Baton Rouge, Louisiana 70806

John K. Van Norman, III

Post Office Box 1746

Lake Charles, Louisiana 70602

H. O. Lestage, III

Post Office Box 151

DeRidder, Louisiana 70634

Robert H. Marve and

Woodrow W. Wyatt

Post Office Box 44245, Capitol Station

Baton Rouge, Louisiana 70804

Edmund E. Woodley

Post Office Drawer EE

Lake Charles, Louisiana 70602

Robert W. Thomas

522 Clarence

Lake Charles, Louisiana 70601

Court of Appeal

Third Circuit

% Honorable Kenneth deBlanc, Cierk

State of Louisiana

Calcasieu Parish Courthouse Annex

Lake Charles, Louisiana 70601

Fourteenth Judicial District Court

Parish of Calcasieu

% Honorable Acton Hillebrandt

Clerk of Court

Post Office Box 1030

Lake Charles, Louisiana 70602

Supreme Court of Louisiana

% Honorable Frans J. Labranche, Jr.

Supreme Court Building

301 Loyola Avenue

New Orleans, Louisiana 70112

Baton Rouge, Louisiana, this seventeenth day of

September, 1982.