Petition — Taylor v. Howard

f on upreme

82-858 FILED

NOV 2m ed?

ALEXANDER 8 STEVAS,

Jute Supreme Court of the United States

OctosBer TERM, 1982

WAYNE N. HCWARD and MICHAEL E. TRAUSCHT,

Petitioners and Cross-Respondents,

V.

WALTER ROBERT TAYLOR,

Respondent and Cross-Petitioner.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN C. McMURRY

625 N. W. 13th Street

Oklahoma City, Oklahoma 73103

(405) 528-3008

Counsel for Respondent and Cross-

Petitioner, Walter Robert Taylor

November, 1982

QUESTIONS PRESENTED FOR REVIEW

1. Is the “color cf state law” requirement of 42 U.S.C.

§ 1983 satisfied by the “state action” of a state court’s or-

dering violation of a citizen’s First and Fourteenth Amend-

ment rights?

2. In ascertaining what is and is not “state action”,

is state court action enforcing racially restrictive covenants

distinguishable from state court action committing an adult

citizen to the custody of another to be “counseled”, “ex-

amined” and “treated” and his will?

3. Dees the history of 42 U.S.C. § 1983 indicate that

it should be applied to prevent the use of state courts to

injure citizens and that it should be applied to enforce pro-

visions of the Constitution against all state action, whether

legislative, executive or judicial?

4. Is the action cf ccnspirators in using a state court

“temporary guardianship” order to take and retain custody

of an adult citizen to abuse him mentally and to force him

to change his religion and lifestyle, “misuse of power, pcs-

sessed by virtue of state law and made possible only be-

cause the wrongdoer is clothed with authority of the state”?

5. Is the power and authority stated in and exercised

under a state court “temporary guardianship” order pro-

viding for confinement, “counseling”, “examination” and

“treatment” of an adult citizen, “power possessed by vir-

tue of state law and made possible only” as a result of

“being clothed with authority of the state”?

6. Is such action (Questions 4 and 5) merely the

action of private individuals akin to filing a complaint,

testifying at trial and being on the winning side of a law-

33

suit, or is it the exercise of apparent authority and power

of the state in the form of the “temporary guardianship”

order?

7. Do private citizens have the apparent authority to

confine, “counsel”, “examine” and “treat” another adult

citizen against his will, or is such apparent authority only

exercisable through color of law?

8. Is the action of private persons in confining, “coun-

seling”, “examining” and “treating” another citizen against

his will pursuant to a court order so impregnated with

governmental character as to become subject to the con-

stitutional limitations placed upon state action?

9. If a state court proceeding is a nullity, is there

“color of law” under 42 U.S.C. § 1983 when conspirators

misuse the state judicial process with the specific intent

of depriving a citizen of his liberty without due process,

equal protection of the laws and other rights guaranteed

by the Constitution?

The parties in the United States Court of Appeals for

the Tenth Circuit were: Walter Robert Taylor, appellant,

and Kevin M. Gilmartin, Michael E. Trauscht, Wayne N.

Howard, The Freedom of Thought Foundation, Inc., Jo-

seph Alexander, Esther Alexander and Gary Scharff, ap-

pellees. It is urged by Petitioners that all of these parties

have an interest in the filing of their petition.

*

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

PARTIES _. —

TABLE OF AUTHORITIES

OPINIONS BELOW W

JURISDICTION

STATUTORY PROVISION INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT 0.

I. The Court of Appeals decision, while correctly

holding that there was “state action” in the dep-

rivation of rights secured by the First and Four-

teenth Amendments to the Constitution, conflicts

with applicable decisions of this Court in finding

that the “state action” was not taken under “color

of state law” 1

II. The decision of the Court of r conflicts

with applicable decisions of this Court because it

incorrectly found an absence of “color of law”,

notwithstanding a misuse of power possessed by

virtue of state law and made possible only be-

cause the wrongdoer was clothed with the au-

e

III. The decision of the Court of Appeals that Defen-

dants did not act under color of state law” con-

flicts with applicable decisions of this Court be-

cause the involuntary “counseling”, “examining”

and “treating” of an adult is so impregnated with

PAGE

9 m

10

13

TABLE OF CONTENTS CONTINUED

IV.

—1v—

governmental character as to be subject to consti-

tutional limitations

The Court of Appeals holding that Defendants

did not act “under color of state law” where

otherwise private individuals misused a state ju-

dicial proceeding which was a nullity for the.

purpose of effecting constitutional deprivations is

incorrect and involves an important question of

federal law which has not been, but should be,

3 —

CONCLUSION —ů —

CERTIFICATE OF SERVICE follows Cross-Petition.

APPENDIX — District Court’s July 8, 1980 order

PAGE(S)

15

16

18

la

-—V—

TABLE OF AUTHORITIES

Cases PAGE(S)

Addington v. Texas, 441 U.S. 418 (197999 16

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) 10

Bottone v. Lindsley, 170 F 2d 705 (10th Cir. 1948),

cert, denied, 336 U.S. 944 (1949) ß 16

Evans v. Newton, 382 U.S. 296 (19660 15

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1973) 10, 15

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) ...._ 14

Jackson v. er Edison Co., 419 U.S. 345

(1974) 8 =

Lugar v. Edmondson Oil Co., 102 S.Ct. 2744 (1982) 10, 12

McIntosh v. Dill, 86 Okl. 1, 205 P. 917, cert. denied,

260 U.S. 721 (1922) = „„

Monroe v. Pape, 365 US. 167 ( 1961) — 13

Mullane v. Central Hanover Bank & Trust Co., 399

I. .. 17

Pennoyer v. Neff, 95 U.S. 714 (18793) — 17

Shelley v. Kraemer, 334 U.S. 1 (1949 11

Supreme Court of Virginia v. Consumers Union, 446

.. ͥ e

United States v. Classic, 313 U.S. 299 (19417775 13

Virginia, Ex Parte, 100 U.S. 339 (18800 12

Constitutional Provisions

United States Constitution:

fl ES

Fourteenth Amendment i,

Statutes

Pia) ))

28 U.S.C. 5 1331

AUTHORITIES CONTINUED

28 U.S.C. § 1332

i

28 U.S.C. § 1343(1)

28 U.S.C. § 1343(3)

42 U.S.C. § 1983 i, ii, 1, 2, 3, 6, 7, 8, 12, 13, 18

42 U.S.C. § 1985 eee FE

Rules

Sup. Ct. R. 19.5 — 2

1

In the

Supreme Court of the United States

Octoper Term, 1982

WAYNE N. HOWARD and MICHAEL E. TRAUSCHT,

Petitioners and Cross-Respondents,

V.

WALTER ROBERT TAYLOR,

Respondent and Cross-Petitioner.

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Walter Rebert Taylor, Respondent and Cross-Peti-

tioner, prays that, in the event a writ of certiorari should

issue to the United States Court of Appeals for the Tenth

Circuit to review that part of its July 30, 1982 judgment

which reversed the Trial Court's December 30, 1978 and

December 29, 1979 orders granting partial summary judg-

ment against Respondent and Cross-Petitioner and dismis-

sing his claim based upon 42 U.S.C. § 1985, then in such

event Respondent and Cross-Petitioner prays that a writ

of certiorari issue to the United States Court of Appeals

for the Tenth Circuit to review that part of its July 30,

1982 judgment which affirmed the Trial Court’s December

30, 1978 and July 8, 1980 orders granting partial summary

judgment against Respondent and Cross-Petitioner and dis-

missing his claim based upon 42 U.S.C. § 1983.

*

The December 30, 1978 order of the United States Dis-

trict Court for the Western District cf Oklahoma which

granted partial summary judgment against Respondent and

Cross-Petitioner dismissing his claim based upon 42 U.S.C.

§ 1983 is reproduced in the Appendix to Petition for Writ

of Certiorari to the United States Court of Appeals for the

Tenth Circuit (“Appendix to Petition”) filed by Petitioners

and Cross-Respondents Wayne N. Howard and Michael E.

Trauscht. The July 8, 1980 order of the United States Dis-

trict Court for the Western District of Oklahoma granting

partial summary judgment against Respondent and Cross-

Petitioner dismissing his claim based upon 42 U.S.C. § 1983

is reproduced in the Appendix to this Cross-Petition for

Writ of Certiorari to the United States Court of Appeals

for the Tenth Circuit. The opinion of the United States

Court of Appeals for the Tenth Circuit which affirmed

those orders granting partial summary judgment against

Respondent and Cross-Petitioner on his 42 U.S.C. § 1983

claim is reproduced in the Appendix to the Petition filed

by Petitioners and Cross-Respondents. It has not yet been

reported in the official reporter.

JURISDICTION

The judgment of the United States Court of Appeals

for the Tenth Circuit sought to be reviewed is dated and

was entered July 30, 1982. Respondent and Cross-Petitioner

relies upon Sup. Ct. R. 19.5. Petitioners’ petition for cer-

tiorari was received by counsel for Respondent and Cross-

Petitioner October 21, 1982. The statutory provision be-

lieved to confer on this Court jurisdiction to review the

judgment in question is 28 U.S.C. § 1254(1).

*

STATUTORY PROVISION INVOLVED

United States Code, Title 42

Section 1983:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any S ate or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

in an action of law, suit in equity, or other proper

proceeding for redress.”

STATEMENT OF THE CASE

Plaintiff and Cross-Petitioner here is a monk who re-

sides at an Old Catholic Monastery in a suburb of Okla-

homa City. He was taken against his will from his mona-

stery by Oklahoma County Sheriff's Deputies to a hearing

before the District Court of Oklahoma County, State of

Oklahoma, for a “temporary guardianship” hearing July

15, 1976. At the time he was 21 years old. Defendants

sought Plaintiff's removal from his monastery in order that

he could be “deprogrammed”, a process which involves use

of “confrontative” techniques of “counseling” with the goal

of the “deprogrammee’s” renunciation of his religious be-

liefs.

On July 14, 1976, lawyers for the applicant in the

“temporary guardianship” proceeding conferred with the

Associate District Judge to whom the application was even-

tually presented, Judge John A. “Tony” Benson, who then

contacted the Probate Judge and requested that he be al-

lowed to hear the matter. The “temporary guardianship”

—

proceeding was then filed. Judge Benson then conducted

a hearing July 15, 1976, without notice to Plaintiff, and

wholly in Plaintiff's absence which culminated in Judge

Benson’s ordering the Plaintiff taken into custody. Judge

Benson had decided to order that a temporary guardian

of Plaintiff's person be appointed so that it could be de-

termined if Plaintiff were under the influence of telig-

ious cult. Judge Benson stated that he wanted the Plain-

tiff taken into custody “so that [Plaintiff] could be given

notice of a [permanent] guardianship hearing.

Upon Plaintiff's being taken to the Oklahoma Court,

his counsel of choice was excluded from the hearing, and

at the close of the “temporary guardianship” hearing, the

same day Plaintiff was picked up by sheriff's deputies,

Judge Benson, though finding that Plaintiff appeared “nor-

mal in every respect”, formally entered an “Order Ap-

pointing Temporary Guardianship of the Person” because,

according to Judge Benson:

* the right of [Plaintiff's] father and . . family

to know [Plaintiff] decided . . . to spend the rest of

[his] life away frcm them secluded in a monastery

. . . probably overrides any individual right [Plain-

tiff} might possibly have on a temporary basis

to be free from . . . custody.”

The July 15, 1976 order provided:

“1. Notice of the time and place of hearing is not

required.

2. Dr. Walter Taylor is appointed the temporary

Guardian of the Person of Petitioner's child, to-wit:

Walter Robert Taylor and that temporary Letters cf

Guardianship issue.

*

3. The Temporary Guardian of the person shall have

power to: (a) take said prcposed ward into Peti-

tioner’s perscnal custody to have proposed ward coun-

selled, examined, and treated by persons including,

but nct limited to physicians, psychiatrists, psycholo-

gists, social workers and lay persons; (b) to keep

said ward in Petitioner’s custody, even in the event

said ward wishes to leave said custody; and (c) such

further powers as are necessary to exercise those

above granted.

4, Further hearing in this matter will be held at

August 13, 1976 at 3:00 P.M. at which time the ward

is directed to show cause if any the ward has, why

the Petitioner, Dr. Walter Taylor should not be ap-

pointed permanent Guardian of the ward's person.

On authority of Judge Benson's “temporary guardian-

ship” order (hereafter “Judge Benson's Order”), Plaintiff

was taken that same day, July 15, 1976, from Oklahoma

City, Oklahoma, to Akron, Ohio. He was held for approxi-

mately one week in Akron where he was kept at a motel

under constant guard. There he underwent “deprogram-

ming”: (1) “deprogrammers” yelled at him constantly;

(2) they kept fresh “deprogrammers” yelling at him by

switching off in crews; (3) they said they would have him

tracked down by the state patrol if he escaped, and that

they would have him thrown in jail and “deprogrammed”

in jail; (4) the “deprogrammers” threatened to have the

police close down Plaintiff's monastery, to have the “temp-

orary guardianship” made permanent and have the “de-

programming” continue indefinitely, to have Plaintiff com-

mitted to a mental institution and to beat him; (5) he was

deprived cf sleep and by innuendo he was told that he

atten

would be subjected to shock treatment; (6) he suffered

severe gastritis, diarrhea and abdominal cramping, and

when he complained, the “deprogramming” seemed to in-

tensify; (7) they threw cold water on him, shined a light

in his eyes, tore his monastic clothes off him, and cut his

hair and beard; (8) they told him they called friends and

religious leaders from a list Plaintiff had given them of

people who would vouch for him, and they stated that the

friends reported his religion was not legitimate. The “de-

programmers” indicated the pressure would cease if Plain-

tiff would renounce his religion.

July 22, 1976, the District Court of Oklahoma County,

acting through a different judge than Judge Benson, en-

tered an order declaring Judge Benson's Order void ab

initio which commanded Plaintiff's return to Oklahoma

City. July 23 or July 24, 1976, Plaintiff was taken from

Akron to Phoenix, Arizona, where he was held, still under

guard, for the “rehabilitation” phase of the “deprogram-

ming”. He escaped July 31, 1976, and returned to Okla-

homa City.

Plaintiff brought the instant action against the “de-

programmers”, his parents and brother seeking $300,000.00

compensatory and $3,000,000.00 punitive damages. Juris-

diction was based upon 28 U.S.C. § 1331 (federal question),

28 U.S.C. § 1332 (diversity of citizenship), 28 U.S.C. § 1343

(3) and 28 U.S.C. § 1343 (1) (civil rights). Pursuant to

agreement Plaintiff’s parents and brother were dismissed

prior to trial. Plaintiff sought relief on the basis of a civil

conspiracy and specific legal theories which included vicla-

tion of civil rights under 42 U.S.C. §§ 1983 and 1985(3),

obstruction of justice under 42 U.S.C. § 1985(2), intentional

2

infliction of emotional distress, false imprisonment and as-

sault and battery. He stated in his Complaint that “De-

fendants conspired to and did, under colcr of law deprive

Plaintiff of liberty . . . to ccercively induce an alteration

in Plaintiff’s religious beliefs and practices”, and that De-

fendants acted “under color of law through use of the ju-

dicial system, court orders and actions of the Sheriff's off-

ice... .” Plaintiff did not allege that either Judge Benson

or the Sheriff’s deputies who arrested him were co-con-

spirators of Defendants.

The Trial Court granted partial summary judgment

against Plaintiff dismissing his 42 U.S.C. § 1983 count on

the basis that the requisite color of state law was not pres-

ent. It granted partial summary judgment against Plaintiff

dismissing the 42 U.S.C. § 1985 (3) count because it con-

cluded that Plaintiff’s action did not allege deprivations

which would give rise to Congressional authority to reach

private ccnspiracies. It granted partial summary judgment

against Plaintiff dismissing his 42 U.S.C. § 1985(2) count

on the basis that a source of Congressional power to reach

the private conspiracy alleged could not be identified.

Trial of the action was to a jury. At the close of the

evidence the court directed a verdict against Plaintiff on

his false imprisonment claim on the basis that Judge Ben-

son’s Order was a “proper” order. The court also directed

a verdict against Plaintiff on the intentional infliction of

emotional distress claim, holding that the court was re-

quired in the first instance to determine whether Defen-

dants’ conduct was so “extreme” and “outrageous” as to

permit recovery, and in the instant action, reasonable minds

*

could not differ: Defendants’ conduct was not so ex-

treme” and “outrageous” as to permit the question to be

submitted to a jury. The case then went to the jury solely

on the theory of conspiracy to assault and batter. The

jury returned a verdict in favor of the Defendants and

against Plaintiff, and the court entered judgment on the

verdict.

Plaintiff perfected an appeal to the United States Court

of Appeals for the Tenth Circuit which, by opinion dated

July 30, 1982, reversed the Trial Court’s grant of summary

judgment and the Trial Court’s directed verdicts and judg-

ment on jury verdict, except the Trial Court’s dismissal

of Plaintiff's claim based upon 42 U.S.C. § 1983. The Tenth

Circuit held that “The order dismissing the § 1983 claim

must be affirmed.” While holding that Plaintiff's Complaint

alleged a conspiracy to induce the State to violate his First

and Fourteenth Amendment rights, the Court of Appeals

concluded that there was no action taken under color of

state law because the State of Oklahoma had merely fur-

nished a forum to private litigants. Defendants then sought

review by this Court of the Tenth Circuit’s reversal of the

Trial Court’s grant of summary judgment dismissing Plain-

tiff's 42 U.S.C. § 1985 claims.

a

This Cross-Petition should be granted because the

United States Court of Appeals for the Tenth Circuit has

decided a federal question in a way which conflicts with

applicable decisions of this Court and because the Court of

Appeals has decided an important question of federal law

which has not been, but should be, settled by this Court.

The Court of Appeals’ decision, while correctly holding that

there was “state action” in the deprivation of rights se-

cured by the First and Fourteenth Amendments to the Con-

stitution, conflicts with applicable decisions of this Court

in finding that the “state action” was not taken under

“color of state law”. The decision of the Court of Appeals

conflicts with applicable decisions of this Court because it

incorrectly found an absence of “color of state law”, not-

withstanding a misuse of power possessed by virtue of

state law and made possible only because the wrongdoer

was clothed with the authcrity of the State. The decision

of the Court of Appeals that Defendants did not act under

“color of state law” conflicts with applicable decisions of

this Court because the involuntary “counseling”, “exam-

ining” and “treating” of an adult is so impregnated with

governmental character as to be subject to constitutional

limitations. The Court of Appeals holding that Defendants

did not act under “color of state law” where otherwise pri-

vate inaividuals misused a state judicial proceeding which

was a nullity for the purpose of effecting constitutional

deprivations is incorrect and involves an important ques-

tion of federal law which has not been, but should be,

settled by this Court.

*

I. THE COURT OF APPEALS’ DECISION, WHILE COR-

RECTLY HOLDING THAT THERE WAS “STATE AC-

TION” IN THE DEPRIVATION OF RIGHTS SECURED

BY THE FIRST AND FOURTEENTH AMENDMENTS

TO THE CONSTITUTION, CONFLICTS WITH APPLI-

CABLE DECISIONS OF THIS COURT IN FINDING

THAT THE “STATE ACTION” WAS NOT TAKEN UN-

DER “COLOR OF STATE LAW”.

Although finding that Plaintiff properly alleged that

his First and Fourteenth Amendment rights were violated

through “state action”, the Circuit Court held that the

“state action” was not taken under “color of law”. Slip

Opinion at 18-19, 26-32. That holding conflicts with ap-

plicable decisions of this Court.

A 42 U.S.C. § 1983 claim embodies at least two ele-

ments: (1) deprivation of a right secured by the Consti-

tution and laws of the United States; (2) “under color of

law”. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978),

Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). Al-

though this Court held in Flagg Bros., Inc. v. Brooks, 436

U.S. at 156-57, that action taken under color of state law”

does not entail deprivation of a right secured by the Con-

stitution and laws of the United States when there is no

state action, this Court has never found absence of “color

of state law” where there was “state action” in the form of

governmental deprivation of a First or Fourteenth Amend-

ment right. On the contrary, “. . . conduct satisfying the

state action requirement of the Fourteenth Amendment

satisfies the statutory requirement of action under color

of state law. Lugar v. Edmondson Oil Co., 102 S.Ct.

2744, 2753, n. 18 (1982).

*

Although holding that there was no color of law”,

the Circuit Court held:

„. . . [A]lthough . . [Plaintiff] dces nct claim that

the state conspired to deprive him of his constitu-

tional right, he does claim that the state unwittingly

deprived him of those rights when the Sheriff’s depu-

ties forced Taylor to appear before Judge Benson

under no apparent statutory authority and when the

state court appointed his father temporary guardian

without any jurisdiction, whereby he was illegally

delivered over to the defendants and was deprived

of his freedom of association and his freedom to pur-

sue his religious beliefs. We must hold that a private

conspiracy, if this be such, motivated by a class-based,

invidiously discriminatory animus, to induce the state

to violate one’s first and fourteenth amendment rights

is remedied by §§ 1985 (2) and (3).”

Emphasis supplied. Slip Opinion at 31-32.

The Tenth Circuit’s analysis below that there was

“state action” is consistent with this Court’s conclusion

that judicial enforcement of racially restrictive covenants

constitutes Fourteenth Amendment “state action”:

“The difference between judicial enforcement and non-

enforcement is the difference between being denied

rights . . . and being accorded full enjoyment of those

rights on an equal footing.”

Shelley v. Kraemer, 334 U.S. 1, 19 (1948).

Plaintiff's deprivation of liberty, freedom of associa-

tion and freedom of religion were caused by the exercise

of a putative state right or conduct imposed by the State

in the form of Judge Benson’s order. Defendants and

Plaintiff’s “temporary guardian” »s authorized by, and act-

23

ing in accordance with, Judge Benson's order acted with

state officials — Judge Benson and Oklahoma County Sher-

iff’s deputies — or obtained significant aid from them. In

conspiring with Plaintiff's “temporary guardian”, Defen-

dants were thus “state actors”. See Lugar v. Edmondson

Oil Co., 102 S.Ct. at 2754.

The Court of Appeals’ conclusion that there was no

action taken under “color of state law” because the State

merely furnished a forum or allowed itself to be used by

the conspirators conflicts with applicable decisions of this

Court and is inconsistent with the legislative history of

42 U.S.C. § 1983. The Civil Rights Act of 1871 does not

provide an exemption or “safe harbour” for state action

through judicial process. To the contrary, all state action,

whether executive, legislative or judicial, may be reached

under 42 U.S.C. § 1983. Supreme Court of Virginia v. Con-

sumers Union, 446 U.S. 719, 735, n. 14 (1980), citing Ex

Parte Virginia, 100 U.S. 339, 346 (1880). One of the evils

which was to have been addressed by 42 U.S.C. § 1983

was the use of state courts to harass and injure citizens.

Id. 42 U.S.C. § 1983 dees not require that a judge be a

conspirator as a prerequisite to relief for First and Four-

teenth Amendment violations perpetrated under authority

of a state court. Such a requirement would thwart the

remedial purpose of the statute. That is the effect of the

judgment of the Court of Appeals. Though finding “state

action”, it held that there was no “color of law” contrary

to this Court’s decision in Lugar v. Edmondson Oil Co.,

supra.

The Tenth Circuit’s response to the pronouncements of

this Court in Lugar v. Edmondson Oil Co. is that Lugar is

—13—

distinguishable because Plaintiff does not contend that the

Oklahoma guardianship statute is constitutionally defective.

Slip Opinion at 19-20 n. 3. That factual analysis is correct,

but it does not effectively distinguish the rationale of Lugar

because Defendants acted under putative state authority in

the form of Judge Benson’s order which clearly authorized

the constitutional violations. Plaintiff has specifically chal-

lenged the constitutionality of Judge Benson’s order which

facially provided state authorization for Defendants to “de-

program” Plaintiff thereby violating his First and Four-

teenth Amendment rights.

II. THE DECISION OF THE COURT OF APPEALS CON-

FLICTS WITH APPLICABLE DECISIONS OF THIS

COURT BECAUSE IT INCORRECTLY FOUND AN AB-

SENCE OF “COLOR OF LAW”, NOTWITHSTANDING

A MISUSE OF POWER POSSESSED BY VIRTUE OF

STATE LAW AND MADE POSSIBLE ONLY BECAUSE

THE WRONGDOER WAS CLOTHED WITH THE AU-

THORITY OF THE STATE.

Action taken under “color of law” as prescribed by

42 U.S.C. § 1983 is defined as

“Misuse of power, possessed by virtue of state law and

made possible only because the wrongdoer is clothed

with the authority of the state.

Monroe v. Pape, 365 U.S. 167, 184 (1961), United States v.

Classic, 313 U.S. 299, 326 (1941).

Defendants took and retained custody of Plaintiff under

Judge Benson’s order for the purpose of forcing him to

change his religion by means of mental abuse. The Dis-

trict Court of Oklahoma County contemplated “deprogram-

*

ming” Plaintiff. As the Trial Judge observed: Judge

Benson] knew what this was about, knew what was going

to happen, had this presented to him, as it's in the record

and his order says as much.” When Defendants took Plain-

tiff for “deprogramming”, they misused power, “possessed

by virtue of state law and made possible only” through

the cloak of state authority in the form of Judge Benson’s

order. The power and authority which Defendants exer-

cised under Judge Berson’s order for confinement, “coun-

seling“, “examination” and “treatment” of Plaintiff was

“power possessed by virtue of state Jaw and made possible

only” as a result of Plaintiff's father and guardian, De-

fendants’ co-conspirator, “being clothed with authority of

the state.”

Plaintiff's temporary guardian”, Defendants’ co-con-

spirator, possessed power by virtue of state law in the

form of Judge Benson’s order. Guardianship powers are

so identified with the State that since feudal times they

have been viewed as an incident of sovereignty. Guardian-

ship powers stem from the “royal prerogative” because the

King as “father of the country” functioned as guardian

of all persons under a legal or mental disability. “In the

United States, the ‘royal prerogative’ and the ‘parens pat-

riae’ function of the King passed to the states.” Hawaii v.

Standard Oil Co., 405 U.S. 251, 257 (1972); See McIntosh v.

Dill, 86 Okl. 1, 205 P. 917, cert. denied, 260 U.S. 721 (1922).

Defendants did not merely resort to the courts for the

adjudication of a claim and win their case. They assumed

the apparent power of the State in the form of Judge

Benson’s order to force Plaintiff to change his religion.

Private citizens do not have the apparent authority to con-

— =

fine, “counsel”, “examine” and “treat” another adult citizen

against his will. Such apparent authority is only exer-

cisable through color of law.

III. THE DECISION OF THE COURT OF APPEALS THAT

DEFENDANTS DID NOT ACT UNDER “COLOR OF

STATE LAW” CONFLICTS WITH APPLICABLE DE-

CISIONS OF THIS COURT BECAUSE THE INVOLUN-

TARY “COUNSELING”, “EXAMINING” AND “TREAT-

ING” OF AN ADULT IS SO IMPREGNATED WITH

GOVERNMENTAL CHARACTER AS TO BE SUBJECT

TO CONSTITUTIONAL LIMITATIONS.

The action of private persons in confining, “counsel-

ing”, “examining” and “treating” another adult citizen

against his will pursuant to a court order is “so impreg-

nated with governmental character as to become subject

to constitutional limitations placed upon state action.” Cf.

Evans v. Newton, 382 U.S. 296, 299 (1966) (private devise

of realty in trust to a city for a “public” park for white

people only). In order for nominally private action to be

deemed a governmental function the nominally private

conduct must fulfill a function “exclusively reserved to the

state.” Flagg Bros., Inc. v. Brooks, 436 U.S. at 157-58, quot-

ing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352

(1974). Because Plaintiff's father was to perform a func-

tion unlike an ordinary guardian, the governmental func-

tion test was met.

To restate the obvious, only the State can involun-

tarily confine and “treat” an adult. The only way for an

adult to be confined and “treated” is for the entity con-

fining and “treating” to act as the government acts. Un-

like the Flagg Brothers situation, there is not a variety of

—16—

ways to involuntarily confine and “treat” an adult. The

function of involuntary confinement and treatment is that

of the State. See Addington . Texas, 441 U.S. 418, 426

(1979). It is, and must be, exclusively the function of the

state.

IV.

THE COURT OF APPEALS HOLDING THAT DEFEN-

DANTS DID NOT ACT “UNDER COLOR OF STATE

LAW” WHERE OTHERWISE PRIVATE INDIVIDUALS

MISUSED A STATE JUDICIAL PROCEEDING WHICH

WAS A NULLITY FOR THE PURPOSE OF EFFECT-

ING CONSTITUTIONAL DEPRIVATIONS is INCOR-

RECT AND INVOLVES AN IMPORTANT QUESTION

OF FEDERAL LAW WHICH HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

In examining whether misuse of the judicial process

could ever be action under “color of law”, the United

States Court of Appeals for the Tenth Circuit, speaking

through the late Judge Murrah, stated in dictum:

“It is conceivable that persons, either individually or

acting in concert might so use the state judicial pro-

cess as to deprive a person of his property without

due process of law, or of equal protection of the laws,

yet we are certain that to make out a cause of action

under the Civil Rights Statutes, the State Court pro-

ceedings must have been a complete nullity, with a

purpose to deprive a person of his property without

due process of law.”

Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948),

cert. denied, 336 U.S. 944 (1949). Obviously, the statement

would apply with equal force to deprivations of liberty,

free exercise of religion and freedcm of association. The

question is one of first impression.

2 *

When nominally private parties are allowed to so mis-

use the judicial process, they are exercising power that

ordinary private litigants do not possess. In such a case

the state does more than merely furnish a forum to them.

Where the state acts in the absence of all jurisdiction in

complicity with nominally private litigants’ purpose of de-

priving a citizen of constitutionally protected liberties and

does order such deprivation, the state is no longer disin-

terested. In such a case the state has become inextricably

entangled in the nominally private defendants’ actions so

as to transform them into state actors.

As the Trial Court found: “Judge Benson knew what

this was about, knew what was going to happen, had this

presented to him, and it’s in the record and his order says

as much.” The Trial Court further observed Judge Ben-

sons]! . order was to separate. . [Plaintiff] from the

sect, not let him communicate with the sect. That’s what

the Judge intended and that’s what the order says.” When

the State of Oklahoma took such action without any juris-

diction [see Slip Opinion at 8-11, 13; see also Mullane v.

Central Hanover Bank & Trust Co., 399 U.S. 306 (1950),

Pennoyer v. Neff, 95 U.S. 714, 752 (1878)], it did not treat

the proceeding as just another lawsuit where it merely

furnished a forum. It became “interested” as a result of

Judge Benson and Defendants’ radical departure from the

ordinary judicial process in ordering Plaintiff's “depro-

gramming”. The State of Oklahoma clothed Plaintiff's

father and Defendants with its authority in a way that

ordinary citizens never are. The fact that Judge Benson’s

role may have been that of an ignorant participant in De-

fendants’ scheme, as opposed to a purposeful participant

*

in the conspiratorial sense, does not disentangle the state's

involvement.

For these reasons Walter Robert Taylor, Respondent

and Cross-Petitioner, prays that, in the event a writ of cer-

tiorari should issue to the United States Court of Appeals

for the Tenth Circuit to review that part of its July 30,

1982 judgment which reversed the Trial Court’s December

30, 1978 and December 29, 1979 orders granting partial

summary judgment against Respondent and Cross-Peti-

tioner and dismissing his claim based upon 42 U.S.C. § 1985,

then in such event Respondent and Cross-Petitioner prays

that a writ of certiorari issue to the United States Court

cf Appeals for the Tenth Circuit to review that part of its

July 30, 1982 judgment which affirmed the Trial Court’s

December 30, 1978 and July 8, 1980 orders granting par-

tial summary judgment against Respondent and Cross-

Petitioner and dismissing his claim based upon 42 U.S.C.

§ 1983.

Respectfully submitted,

JOHN C. McMURRY

625 N. W. 13th Street

Oklahoma City, Oklahoma 73103

(405) 528-3008

Counsel for Respondent and Cross-

Petitioner, Walter Robert Taylor

November, 1982

CERTIFICATE OF SERVICE

The undersigned John C. McMurry, a member of the

Bar of this Court and counsel of rec ord for Walter Robert

Taylor, Respondent and Cross-Petitioner herein, hereby

certifies that on the 19th day of November, 1982, he caused

to be served the foregoing Cross-Petition for Writ of Cer-

tiorari on all parties by mailing three copies thereof by

First Class mail, postage prepaid, to each of their counsel

of record, addressed as follows:

Albert R. Vermeire

Monbleau, Vermeire & Turley, P. C.

1510 Financial Center

3443 North Central Avenue

Phoenix, Arizona 85012

John B. Hayes

Looney, Nichols, Johnson & Hayes

P. O. Box 468

Oklahoma City, Oklahoma 73101

William A. Johnson

Sanders, Boone & Johnson

2200 Classen Boulevard, 4th Floor

Oklahoma City, Oklahoma 73106

John C. McMurry